* THE HON’BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO +CRL.A.No.833 OF 2007 %22.12.2010 #Veeramaneni Srinivas Rao ..... APPELLANT AND State of A.P. .....RESPONDENT ! Counsel for the appellant: Smt S.A.V.Ratnam ^ Counsel for the respondent: Public Prosecutor < Gist: > Head Note: ? Cases referred: -NIL- THE HON’BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRL.A.No.833 OF 2007 JUDGMENT: (per K.C.BHANU,J) The accused in Sessions Case No.243 of 2005 on the file of the IV Additional District and Sessions Judge (Fast Track Court), Karimnagar who was convicted for the offence punishable under Section 302 I.P.C. and sentenced to undergo Imprisonment for Life and to pay a fine of Rs.500/-, in default to undergo simple imprisonment for a period of two months by judgment dated 10.02.2006 is the appellant herein. The case of the prosecution in brief is as follows: PW 1 is the son, PW 2 is the brother of the deceased and the accused is the brother-in-law of the deceased. PW 1 is the son of the first wife of the deceased. After her death, he married another lady and was blessed with two daughters. About six months prior to the date of incident, she also died. During her life time, the deceased advanved an amount of Rs.2,00,000/- to his brothers-in-law. On 23.04.2004, the deceased along with his friend PW 4 went to the house of PWs 1 and 2, informed to them that he was going to Sirsapalli to collect the amount of Rs.2,00,000/- given by him to his brothers-in-law and then deposit the same in the names of his two daughters who were blessed through his second wife. So saying, he left the house along with his friend at 1 P.M. Then they both reached Sirsapalli by 3 PM to the house of his brother-in-law (the accused), as no person was there at the house, they went to Huzurabad and then the deceased purchased sweet packets and again went to Sirsapalli by 8 PM and found the accused sleeping in the house along with his two children. Then they woke him up and the deceased informed that he came to collect Rs.2,00,000/-. On that, the accused asked him as to what happened to the money which he is having. So saying, he took a stick and beat him on his head and face. Seeing the same, due to fear PW 4 ran away from the scene. On 23.04.2004 at about 9 PM, the accused went to PW 5 the Sarpanch of Sirsapalli Village and alleged to have made an extra judicial confession. So saying he went away. Then on the next day, PW 5 went to the scene of offence and saw the dead body. In the meanwhile, PWs 1 and 2 and other relatives on receiving the information also rushed to the scene. Then, on 24.04.2004 at about 10 AM, PW 1 lodged a report which is marked as Ex.P-1. Basing on Ex.P-1, PW 9-the Assistant Sub-Inspector of Police registered the same as case in Crime No. 48 of 2004 and issued F.I.R marked as Ex.P-11. Further investigation was taken over by PW 10- the Inspector of Police who visited the scene of offence and prepared an observation report and rough sketch of the scene marked as Exs.P- 9 and 12 respectively. Further, got the scene photographed through PW 6. Exs. P-2 and 7 are the relevant photographs. Thereafter, he held inquest over the dead body in the presence of PW 7 which is marked as Ex.P-8. He then forwarded the dead body for post mortem examination. On 24.04.2004 on requisition, PW 11 Civil Surgenon, Huzurabad, Government Hospital held autopsy over the dead body of the deceased and opined that the cause of death was due to cardio respiratory arrest resulting from multiple injuries. Ex.P-16 is the post mortem report. On 29.04.2004, PW 10 arrested the accused and in pursuance of his statement at his instance MO 8 blood stained stick and MO 9 blood stained full hands banian was recovered under Ex.P-10 panchanama. The material objects 1 to 9 were forwarded to Regional Forensic Science Laboratory. Ex.P-15 is the Forensic Science Laboratory Report. After receiving all relevant documents and on completion of investigation, charge sheet was filed. The learned IV Additional District and Sessions Judge (Fast Tract Court), Karimnagar, framed the following charge against the accused. “That you on 23.04.2004 at 1.00 P.M. to 24.04.2004 at 8.00 A.M. at your house situatedat Sirsapalli village in furtherance of your intention, did commit murder of Pulluri Rama Rao @ Ramulu blowing with a wooden plant on his face and head to death when the deceased came to you and demanded repayment of Rs.65,000/- and taking revenge against the deceased for killing your sister, and thereby committed an offence punishable under Section 302 of the Indian Penal Code and within my cognisance.” When the above charge was read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. To substantiate the charge, the prosecution examined P.Ws.1 to 11 and got marked Exs.P1 to P16, besides case properties M.Os.1 to 9. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses. He denied the same. On behalf of the accused, no oral or documentary evidence was adduced. Accepting the evidence of PWs 4 and 5, the learned Sessions Judge found the accused guilty and accordingly convicted and sentenced as above. Challenging the same, the present Criminal Appeal is filed. Now the point for determination is whether the prosecution proved its case against the accused beyond all reasonable doubt for the offence punishable under Section 302 I.P.C. and whether the judgment of the trial court is correct, legal and proper? Learned senior counsel Sri C. Padmanabha Reddy, appearing for the appellant vehemently contended that the evidence of the prosecution witnesses is highly improbable and that if really PW4 was present at the time of offence, he would have reported the matter to the police or to the relatives of the deceased, that though he stayed in the bus stand at Huzurabad for a considerable length of period, he did not go to the police station which is situated near the bus stand i.e., at a walkable distance, that the conduct of PW4 is highly unnatural in not informing incident to any body, that the evidence of PW5 who is said to have been examined by the police to speak about the extra judicial confession said to have been made by the accused cannot be accepted for the reason that he did not inform about the same to the police or to any body though he was having motor cycle, that if really the accused came and confessed about the incident, he would have gone to the police station and informed about the same, that as per his evidence, if any dispute or quarrel takes place between the villagers, he is in the habit of going to the police station, that there is a suspicion whether the offence as stated by him is committed or not, that PWs 1 and 2 who are the son and the elder brother of the deceased respectively did not specifically speak about the presence of PW4 at the time of incident, that it is their evidence that the deceased left the house of PW1 stating that he is going to his brothers-in-law house so as to collect an amount of Rs.2,00,000/- and therefore, the presence of PW4 is quite doubtful and hence he prays to set aside the conviction and sentence. On the other hand, counsel representing the learned Public Prosecutor contended that PW 4 who was present at the time of incident stated in his evidence that the deceased is his friend and on 23.04.2004 the deceased and himself travelled to Sirsapalli where the accused was sleeping in his house along with two children and that after seeing the incident due to fear he ran away from the scene of occurrence and that he did not give information to the police or to the relatives of the deceased due to panic or fear, that the reaction of a witness cannot be a ground to discredit his testimony, that immediately after the incident, the accused went to PW 5 who is the Sarpanch of the village and made extra judicial confession narrating as to how he committed murder of the deceased and there is no other reason for PWs 4 and 5 to speak false against the accused so as to implicate him in a case of this nature, that the trial court after appreciating the evidence found him guilty and there are no grounds to interfere with the same. PW 7 is one of the inquest mediators, when PW 10 conducted inquest over the dead body of the deceased on 24.04.2004. PW 7 opined that the deceased died as a result of head injury. The scene of occurrence has been specifically mentioned in the Crime Details Form which was marked as Ex.P9. The accused is not seriously disputing or controverting the scene of occurrence as projected by the prosecution. PW 11 is a Civil Surgeon who conducted autopsy over the dead body of the deceased, found the following injuries: a) Incised wound over the fore head 5x4x3 cms b) Both the eyes and nose are crushed. c) Lacerated wound over the frontal region of scalp of 10x6x5 cms exposing with brain matter through the wound. It is his evidence that the above injuries are antimortem in nature and the approximate time of death of the deceased is 24 hours prior to conducting of post mortem examination. He issued Ex.P-16 post mortem certificate. Except suggesting that he signed in Ex.P16 at the instance of the police nothing has been elicited to discredit Ex.P16. Therefore, from the evidence of PW 11 and the recitals in Ex.P-16 it is established beyond reasonable doubt that the death of the deceased is homicidal in nature. Now it has to be seen whether the death of the deceased is caused by the accused who is none other than the brother-in-law of the deceased. It is the case of the prosecution that the brothers-in-law of the deceased took Rs.2,00,000/- of cash from the deceased and therefore, on 23.04.2004 at about 11.00 A.M., PW 4 and the deceased went to the house of PW 1 and took lunch in the house and left the house. Thereafter, they went to Sirsapalli, the village of accused at about 3.00 P.M. in the afternoon but no one was present. Again they went back to Huzurabad and the deceased purchased sweet packets and at about 8.00 P.M. they again went to the house of brothers-in-law of the deceased. At that time, the accused was sleeping in his house along with two children, then he woke up and he questioned the deceased as to why did he come again. The deceased replied that he came to collect Rs.2,00,000/- as he wanted to deposit the said amount in the name of his two daughters. On that the accused asked him as to what happened to the money which he was having and so saying he took one stick and beat the deceased on his head and face as a result, he fell down. On coming to know about the incident PW 1 who is the son of the deceased went to Sirsapalli and saw the dead body of deceased and thereafter went to the police station and lodged a report. The entire case of prosecution rests upon the evidence of PWs.4 and 5. Learned senior counsel contended that the name of PW 4 does not found place in the First Information Report as an eyewitness to the incident though according to the prosecution, he was present at the time of offence. Further it is his contention that the conduct of PW 4 immediately after the incident is unnatural and unbelievable. Therefore, no reliance can be placed upon his evidence. In the First Information Report, the name of PW4 has not been specifically mentioned as the person present along with the deceased but it is specifically stated that the deceased and his friend came to the house of PW1, took lunch and thereafter, they left the house. The friend of deceased can be referable to PW 4. Further, PW1 who is none other than the son of the deceased stated in his evidence that the deceased came along with PW4 to his house and both of them took lunch in his house. Non-mentioning the name of PW4 specifically in the First Information Report cannot be said that he had not accompanied the deceased on the date of incident to the house of PW 1. PW 1 who is the son of the deceased must be in the state of perplex in and contrition as his father died. Therefore, he might not have specifically mentioned the name of PW4 in Ex.P-1. The object of first information report from the point of informant is to set the criminal law in motion and from the point of investigating agency is to obtain information about the alleged criminal activity so as to be able to take steps for tracing and bringing to book the culprit. Therefore, non mentioning the name of PW4 in the circumstances of the case cannot be said to be a ground to disbelieve the presence of PW 4 along with the deceased on the date of incident. No doubt, PW 4 after seeing the incident did not go to the police station to lodge a report or went to the village of PW1 to inform him or to other relatives of the deceased. He slept at the bus stand of Huzurabad through out the night and waited at the bus stand at Huzurabad till 2.00 P.M. on the next day. No doubt, the conduct of PW 4 appears to be somewhat questionable in not reporting the matter, but at the same time, the reaction of the witnesses after seeing the incident varies from person to person. There is no standard way in which all the persons will act in a similar situation. How a person will act in a particular situation will depend upon his mental making, strength of his nerves, his reaction with deceased and gravity of situation. Because he has not reacted as a normal prudent man, it cannot be said to be a ground to disbelieve or discredit his evidence. Further more, the presence of PW4 along with the deceased on the relevant date of incident has not been specifically denied and disputed. On the other hand, it is specifically suggested to PW4 that he committed the murder of the deceased and committed theft of cash from him. This appears to be an extreme case of accused as it is not substantiated without any evidence. Due to fear or frightening, on seeing ghastly incident, he must not have gone to the police. Therefore, for that reason, the evidence of PW4 cannot be disbelieved. Therefore, the presence of PW4 at the scene can be accepted. If there is any motive or animosity for him to implicate the accused falsely leaving the real assailant then only the evidence of PW4 has to be viewed with suspicion. There is no other circumstance to indicate that PW 4 had entertained enmity against accused. Even after the lengthy cross examination nothing has been elicited to show that there is enmity against the accused so as to implicate him falsely. Accused is a total stranger. He belongs to different village. No odium exists between the accused and PW4 prior to the incident in question. In the absence of enmity, the question of false implication of accused cannot be accepted. Therefore, the evidence of PW4 can be accepted in spite of the fact that his name was not specifically mentioned in the First Information Report. It is one of the contentions of the learned senior counsel that though PW4 was present at the time of inquest he was not examined during inquest. Therefore, his evidence has to be viewed with suspicion. The inquest was conducted on the next day of the incident from 11.00 A.M. to 1.00 P.M. by which time he was present at the bus stand of Huzurabad. According to PW4 on coming to know about the police reaching the scene of occurrence, he went there at 2.00 P.M. Therefore, he was not shown to be present at the time of inquest. Therefore, the question of his examining at the time of inquest may not arise. The prosecution is also relying upon the evidence of PW5 who is the Sarpanch of Sirsapalli village in which the accused was residing. According to PW5, the accused went to his house at about 9.00 P.M. on the same night of incident and informed him as follows: “about half an hour back my brother in law i.e., deceased herein came to my house along with his friend on a motor cycle, then I asked my brother in law why did you come to my house, then my brother in law-deceased herein told me that he came to deposit Rs.2,00,000/- in the name of his children and also threaten me to compromise the case, on that a quarrel took place between me and the deceased, during the course of quarrel I pushed the deceased, then he fell down on the ground, then I picked up a stick from the heap of sticks and beat on the head and face of the deceased with an intention to kill him; as a result he died and the person who accompanied the deceased ran away then I concealed the stick.” On the aspect of extra judicial confession, the learned senior counsel contended that the evidence of PW5 has to be disbelieved on the ground that he did not went to the police station to lodge the report nor did he inform the same to any one of the villagers though according to prosecution several villagers were present at the time of incident. No doubt he ought to have informed the police by going to the police station on his motorcycle but at the same time that circumstance alone cannot be taken, so as to throw away the entire evidence of PW5. If the foundation of the prosecution hinges upon extra judicial confession, that too, retracted, such an extra judicial confession requires support in material particulars, besides the same being, found to be true, voluntary and reliable, before every criminal liability is fixed upon the accused. No doubt extra judicial confession can be said to be a weak piece of evidence, but at the same time, the court cannot start with a presumption that extra judicial confession is a weak piece of evidence. That evidence, like that of any other evidence has to be appreciated duly taking note of to whom the extra judicial confession is made, whether he is a disinterested witness, and whether he has any enmity against the accused, verosity of witness to whom it is made etc. The reason for accused approaching the Sarpanch is that he would bail him out in the case. Therefore, he went there and gave the extra judicial confession. That appears to be probable because PW5 being the Sarpanch of the village, there is every reason for the accused to go to the house of Sarpanch immediately after the incident. Admittedly, nothing has been elicited from the cross examination of PW5 as to why he has to speak false against the accused. He has no enmity against the accused so as to implicate him. Even assuming for a moment, the extra judicial confession is found to be suspicious for the reason that PW 5 did not inform the same to any body including police, that only puts the Court on guard to accept the same if the same is supported by other acceptable evidence on material particulars. Therefore, extra judicial confession made by the accused to PW5 can be accepted as a corroborative piece of evidence to support the other evidence on record. From the evidence of PWs 4 and 5 it can safely be said that it is the accused who caused injury to the deceased. From the facts and circumstances of the case, it can be said that the accused is the assailant of deceased. It is the specific case of prosecution that the accused along with his other brothers had taken an amount of Rs.2,00,000/- from the deceased. When the deceased along with PW 4 went to the house of the accused, admittedly, the accused was slumbering and he was not armed with any weapon at the time of incident. Because, accused was woken up in the middle of sleep, accused might have lost control and for that reason he picked up a weapon at the scene of occurrence and beat on the head of the deceased which proved to be fatal. If really the accused had any intention to kill his own brother-in-law he would have repeated the blows. The first part of Section 304 IPC is intended only on those cases in which the act of the accused person would be culpable homicide amounting to murder, but for the fact that it was committed in circumstances which render one or other of the exceptions in Section 300 IPC applicable. The second part of Section 304 IPC applies to those rather rare cases of deliberate assault where the act of assault can be separated from the injury caused with the result, that knowledge of likelihood to cause death can be proved without intention to cause vital injury being established. It is slightly lessor class of offences where there is knowledge that the act is likely to cause death, but where the intention to cause death is not present. Exception 4 of Section 300 IPC is applicable because four conditions are satisfied (i) absence of premeditation (ii) there must be a sudden fight (iii) the killing must be in the heat of passion upon a sudden quarrel and (iv) the offender should not have taken undue advantage or acted in a cruel or unusual manner. There is no prior intention of accused to kill the deceased. Accused was not armed with any weapon. Accused picked up a weapon available at the scene and dealt a blow on the head. In these circumstances, it can be said that accused actuated by heat of passion, all of a sudden, being provoked, used a handy weapon and smote on the head. Therefore, the act of the accused squarely falls under exception 4 of Section 300 IPC. The accused must be having knowledge that his act would likely to cause death. Hence accused is found guilty under Section 304 Part II IPC. In the result, the Criminal Appeal is partly allowed by setting aside the conviction and sentence recorded by the IV Additional District and Sessions Judge (Fast Track Court), Karimnagar vide judgment dated 10.02.2006 in Sessions Case No.243 of 2005 against the appellant-accused for the offence under Section 302 I.P.C. But, we find him guilty for the offence punishable under Section 304 part-II I.P.C and accordingly convict and sentence him to undergo Rigorous Imprisonment for five years. The remand period undergone by the accused during the course of investigation, trial and after conviction shall be given set off under Section 428 Cr.P.C. K.C.BHANU,J N.R.L.NAGESWARA RAO,J Dt. 22.12.2010 lvl Note: LRcopy to marked b.o. lvl THE HON’BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRL.A.No.833 OF 2007 (per K.C.BHANU,J) Dt. 22.12.2010