Andhra Pradesh High Court - Amravati
Chinna Kolandai Chinna Govindu, ... vs The State Of Ap., Rep Pp., on 28 May, 2020
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, Battu Devanand
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THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE BATTU DEVANAND
Criminal Appeal No. 34 of 2016
JUDGMENT:(Per Hon'ble Sri Justice C.Praveen Kumar)
1) The sole accused in Sessions Case No. 254 of 2014 on the file of the I Additional Sessions Judge -FAC- District and Sessions Judge, Chittoor, is the appellant herein. He was tried for the offence punishable under Section 302 IPC for causing the death of one S.Adimoolam ['deceased'] by beating him with a ladle [jaggery gore] on 03.05.2014 at 1.30 p.m. in the mango garden of one Babu. By its Judgment, dated 20.11.2014, the learned Sessions Judge convicted the accused for the offence punishable under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay fine of Rs. 5,000/- in default to suffer simple imprisonment for six [06] months. Challenging the same, the present appeal came to be filed.
2) As there was no representation on behalf of the appellant, the Secretary Legal Aid Authority is directed to allot the case to Sri. T.S. Rayulu.
3) The facts, as culled out, from the evidence of prosecution witnesses are as under:
i) PW1 is the brother of the deceased, while PW2 is his Nephew.
The accused and the deceased used to work at the sugarcane crushing machine. PW3 who is a resident of Diguvooru village 2 and was examined to speak about the incident which took place between the accused and deceased at 8.30 or 9.00 a.m.
ii) About 20 days prior to the date of incident, which was on 03.05.2014, the deceased went to attend coolie work in Diguvooru Village for sugarcane crushing operations. A week prior, the deceased came to the house and informed PW1 that he is working at crushing machine of PW3; that the work is almost complete and that he will return home by next Sunday after collecting the money. The deceased requested PW1 to come to Diguvooru Village on the day to collect money.
iii) On 03.05.2014 at about 10.00 a.m. PW1 and PW2 went to Diguvooru Village to meet the deceased. At that time, they found the accused and deceased working together at the crushing machine. They were informed by the deceased that the work will be completed on that day and thereafter money would be paid to him. Hence, the deceased requested both of them to wait. It is said that, on that day, at about 8.00 or 9.00 a.m. both the accused and deceased fought with each other as the accused has to pay a sum of Rs.100/- to the deceased. A quarrel is said to have taken place when the deceased demanded the accused for repayment of Rs.100/-. PW4, who stays nearby the mango garden, is the owner of the sugarcane crop and the crushing machine used for preparing jaggery from sugarcane, requested the accused and the deceased not to quarrel and that he will pay the amount in the afternoon, thereby they can settle the account.
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iv) At about 1.00 p.m. the accused and deceased quarrelled with each other and when PW1 questioned the deceased as to why they were quarrelling, he informed PW1 that the accused has to pay Rs.100/- and as he was repeatedly demanding for repayment, there was a quarrel. PW1 advised them not to quarrel stating that the amount can be paid after receiving the amount from their owner. Accordingly, PW1 and PW2 went back near to the mango tree. Immediately, PW1 heard cries of his brother. He went to the spot and found accused beating the deceased with 'gore' [an instrument used to prepare jaggery]. It is said that the accused beat the deceased 5 or 6 times with the weapon -MO.1. When PW1 went near the deceased, the accused left the place and started running away. Then, PW1 and PW2 chased the accused and caught hold of him at a distance of 10 feet from the spot.
v) It is said that, at about 1.15 or 1.30 p.m., on hearing the cries of PW3 at the crushing machine, PW4 along with others went there and noticed the accused, who was apprehended, being brought to the said place and the dead body of the deceased was lying with injuries. When inquired, PW1 and PW2 informed him about the incident. Though, the people gathered there wanted to shift the deceased to the hospital, but, found him dead. Hence, PW1 lodged a report with PW7 -Sub-Inspector of Police. Basing on which, a case in Cr. No. 60 of 2014 came to be registered for the offence punishable under Section 302 IPC. Ex. P6 is the original First Information Report. Copies of the 4 FIR were also sent to the Inspector of Police and also to Superintendent of Police, Camp Office.
vi) PW8 - the Inspector of Police took up further investigation on receipt of a copy of the FIR and sent a requisition to the Tahsildar to depute one V.R.O. to the scene of offence. Accordingly, PW5 was deputed to the scene. PW8 along with others proceeded to the scene and found the dead body of the deceased under a mango tree near sugarcane crushing machine. He also saw the accused at the scene of offence with hands and legs tied. He removed the rope, relieved the accused and took him into custody. Thereafter, he conducted inquest over the dead body of the deceased in the presence of PW5, LW7 and LW8. Ex.P2 is the inquest report. During inquest, he examined PW1 to PW4 and recorded their statements under Section 161 Cr.P.C. Thereafter, the body was sent for post- mortem examination.
vii) PW6 is the Civil Assistant Surgeon at District Headquarters Hospital, Chittoor. One Dr. E. Lokanadham is said to have conducted autopsy over the dead body of the deceased and issued Ex.P5 the post-mortem certificate containing the signature of Dr.E.Lokanadham, which was identified by PW6.
viii) PW8 who took up investigation, prepared a panchanama of the scene of ofence under Ex.P4 and also got photographed the scene of offence under Ex.P9 to Ex.P14. He also got prepared a rough sketch of the scene of offence, which is placed on record as Ex.P8. After completing the investigation and collecting all 5 the documents, a charge-sheet came to be filed, which was taken on file as P.R.C. No. 10 of 2014 on the file of III Additional Distruct Munsif Magistrate, Chittoor.
ix) On appearance, copies of documents as required under Section 207 Cr.P.C., came to be furnished. Since the case is triable by Court of Sessions, the matter was committed to the District and Sessions Judge under Section 209 Cr.P.C. Basing on the material available on record, charge as referred to above came to be framed, read over and explained to the accused, to which, he pleaded not guilty and claimed to be tried.
x) In support of its case, the prosecution examined PW1 to PW8 and got marked Ex.P1 to Ex.P18, beside marking MO.1 to MO.8. After completion of 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, to which he denied but however no oral evidence was adduced on behalf of the accused except getting marked Ex.D1.
xi) Relying upon the evidence of PW1 to PW5, the learned Sessions Judge convicted the accused for the offence punishable under Section 302 IPC and sentenced him to suffer for life and also to pay fine of Rs.5,000/- and in default to suffer simple imprisonment for six [06] months.
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4) The point that arises for consideration is, whether the prosecution is able to bring home the guilty of the accused beyond doubt for the offence punishable under Section 302 IPC?
5) Sri. T.S. Rayulu, learned Legal-Aid counsel for the appellant would contend that, there are many a number of circumstances to indicate the incident did not happen in the manner spoken to by the prosecution. According to him, the appellant has been falsely implicated in the case after the incident is over, since it is the case of the prosecution that PW1, Subramanyam and Punnakam of Anupu Village committed the offence of transporting illicit liquor and because of a quarrel that took place, they killed the brother of PW1 and foisted the case against the accused. He further pleads that, since the medical evidence is inconsistent with the oral evidence, the entire case of the prosecution has to be viewed with suspicion.
6) The same is strongly opposed by the learned Public Prosecutor contending that the accused was apprehended at the scene of offence and immediately thereafter he was handed over to the police. Therefore, the question of implicating the accused falsely, in the case, did not arise. He further pleads that PW1 and PW2 are eye witnesses to the incident and their evidence amply establish the involvement of the accused.
7) In order to appreciate the rival contentions, it would be appropriate to refer to the evidence of PW1 to PW5 and the evidence of the doctor.
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8) PW1 is none other than the brother of the deceased who in his evidence deposed about deceased attending coolie work in Diguvooru Village, in sugarcane crushing operations. He further deposed that, prior to 03.05.2014, the deceased informed him to come over to Diguvooru Village after a week to collect money. Accordingly, on 03.05.2014 at about 10.00 a.m. PW1 and PW2 went to Diguvooru Village to meet the deceased. They found the accused with the deceased working in crushing machine. The deceased informed him that the work will be completed on that day and money will be given and accordingly asked him to wait. At about 1.00 p.m., they noticed the accused and deceased quarrelling with each other. When PW1 enquired the reason for quarrel, it was informed that the accused has to pay Rs.100/- to him and that the deceased was demanding the same. PW1 advised them not to quarrel as the money can be paid after receiving the same from their owner. Immediately, thereafter, they heard cries of the deceased. When they went nearby, noticed the accused beating the deceased with a 'gore', (instrument is used for preparing jaggery). It is the case of PW1 that the accused beat the deceased on his head 5 or 6 times. On seeing PW1 and PW2, the accused ran away, but PW1 and PW2 chased and apprehended him.
9) In the cross-examination, it has been elicited that PW3 and PW4 came near the dead body of the deceased within two minutes after catching hold of the accused. Though PW1 was subjected to lengthy cross-examination, but nothing useful came to be elicited except an omission in the evidence with regard to PW1 sleeping under a tree, as stated under Ex.D1. The suggestion given with 8 regard to implication of the accused because of the dispute between him, Subramanyam and Punnakam of Anupu Village was denied.
10) PW2 is the Nephew of the deceased, who corroborates the evidence of PW1 in all respects. Insofar as the incident proper is concerned, he categorically deposed that, on 03.05.2014 at about 10.00 a.m. he and PW1 went to Diguvooru Village to meet the deceased. He noticed the accused and deceased working at the crushing machine and the deceased asking PW1 to wait till the money is paid. At about 1.00 p.m. they noticed the accused and deceased quarrelling with each other and when questioned, it was informed by the deceased that the accused has to pay Rs.100/- to him and same is not paid in-spite of repeated demands. The advice of PW1 about re-payment of money by the accused, after it was paid by their owner to the deceased, was also spoken to by PW2. Immediately, thereafter, PW1 and PW2 went out and sat under a mango tree. Immediately thereafter, they heard cries of the deceased. On they going near, noticed the accused beating the deceased with MO.1 on his head 5 or 6 times. Thereafter, the accused ran away on seeing them. It is said that PW1 and PW2 chased the accused and apprehended him at a distance of 20 to 30 feet from the spot. Though, PW2 was cross-examined at length, nothing useful came to be elicited to discredit his testimony. All the suggestions given to him were denied.
11) PW3 in his evidence deposed that, on 03.05.2014 at about 1.30 p.m., she heard cries and accordingly went near to the crushing machine. By the time she went, the accused was already brought to 9 the place by PW1 and PW2. She inquired PW1 and PW2 as to what happened, who informed her about the accused and deceased quarrelling with each other for Rs.100/-. She also deposed about PW1 and PW2 informing her about the accused beating the deceased on his head 5 or 6 times with MO.1. She was also cross-examined at length, but all the suggestions given with regard to the incident in question were denied. But, however, it is to be noted that she was not an eye witness to the incident and she was informed about the incident by PW1 and PW2.
12) PW4 is a resident of Diguvooru Village and he is the owner of sugarcane machine. According to him, on 03.05.2014 at about 8.30 or 9.00 a.m. the accused and the deceased quarrelled with regard to re-payment of Rs.100/- by the accused. He counselled both of them and told them that he will pay the amount in the afternoon, thereby they can settle the accounts. Thereafter, he went away. At about 1.15 or 1.30 p.m. he heard cries of PW3 from the crushing machine and by the time he reached, saw PW1 and PW2 bringing the accused to that place. When inquired with them as to what happened, they informed about the incident in question. He was also cross- examined, but nothing has been elicited to discredit his testimony.
13) PW5 is the Village Revenue Officer who received information about the incident at 2.30 p.m. On the instructions of Tahsildar, he reached the spot at 3.40 p.m. and found the hands and legs of the accused tied. He acted as a panch witness for all the police proceedings.
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14) PW6 is the doctor who deposed about the post-mortem examination conducted by one Dr. E. Lokanadham. A reading of the post-mortem report shows existence of two lacerated injuries over the body of the deceased, which are as under:-
"Lacerated injury at left side of face and head extending from bridge of nose to left ear involving left eye with deep fractures of maxilla and mandible 20 x 3 cms.
Lacerated injury back of occipital region 3 x 2 cms".
15) It was mentioned in Ex.P5, that the injuries are sufficient to cause the death of a person. Those injuries are possible with MO.1. In the cross-examination, he admits that lacerated injuries can be caused if a person comes into contact with any rough object. Since MO.1 is not a sharp edge weapon, he pleads that the lacerated injuries are possible. However, to a suggestion that MO.1 cannot cause such an injury, was denied by him.
16) Though, the appellant took the plea that PW1, Subramanyam and Punnakam prepared illicit liquor and due to a quarrel that took place among them, they killed the deceased and falsely implicated him in the case, but no scrap of paper has been placed on record to substantiate the same. If really an incident of that nature has taken place, definitely the accused would not have failed to lodge a report against them. But, no report was given and the accused only sought to prove his defense by giving suggestions, which were denied by all the witnesses. Things would have been different had any material been placed on record to prove the said incident. Therefore, the trial court rightly held that the accused failed to prove the plea taken. 11
17) Coming to the facts in issue, it is to be noted that the incident in question took place on 03.05.2014. The evidence on record, more particularly, the evidence of PW1 to PW4 amply establish that immediately after the incident, the accused was apprehended at a distance of 20 to 30 feet of the scene of offence by PW1 and PW2 and he was detained by tying his hands and legs. On receiving information about the incident in question, the police arrived at the scene and took the accused in custody. The presence of the accused at the scene is spoken to by PW1 to PW4. While, PW4 speaks about the presence of accused along with deceased in the morning at about 8.30 or 9.00 a.m. PW1 and PW2 deposed about the presence of accused at 10.00 a.m., and later at 1.00 p.m. Therefore, in our view, the presence of the accused at the scene of offence cannot be doubted.
18) Coming to the incident in question, the evidence of post- mortem doctor amply establishes that it was a case of homicidal death. The doctor noticed two lacerated injuries on the head and face of the deceased and according to him the death took place immediately thereafter. As seen from the evidence of PW1 and PW2, on the fateful day at about 10.00 a.m. both of them reached Diguvooru village and proceeded towards sugarcane crushing machine. They noticed both the accused and the deceased together working in the said place. When inquired, the deceased told PW1 that the money would be paid to him and asked them to wait.
19) From the above, it is clear that insofar as the incident of quarrel which took place at 8.30 or 9.00 a.m., as deposed by PW4, 12 was not informed to PW1 by the deceased. Be that as it may, the incident in question is said to have taken place at 1.00 p.m. On seeing the accused and deceased quarrelling with each other for repayment of Rs.100/- by the accused to the deceased, PW1 went there and pacified both of them stating that since the amount would be paid in due course of the day, the same could be settled. After pacifying the matter, they returned back and sat under a mango tree. Immediately, thereafter, they heard cries and proceeded towards the mango garden, where they noticed the accused beating the deceased with MO.1, which is a jaggery 'gore' i.e. a weapon used for crushing jaggery. Though, PW1 and PW2 in their evidence deposed that the accused beat 5 or 6 times on the head of the deceased, but, the same is falsified by the medical evidence, which refers to only two lacerated injuries on the head.
20) Therefore, it is evident that, PW1 and PW2 exaggerated their version, stating as if the accused gave multiple blows on the head of the deceased. But, at the same time, their evidence cannot be brushed aside totally disbelieving the entire case of the prosecution, on that score. As seen from the record, their evidence establishes the presence of the accused at the scene; and the accused and deceased quarrelling for Rs.100/- to be repaid by the accused to the deceased; and the accused being apprehended immediately thereafter by PW1 and PW2. Therefore, the presence and involvement of the accused in the case in our view stands established.
21) The only question now is whether the accused had any intention to kill the deceased. Admittedly, there was no enmity or 13 earlier disputes between them. The evidence on record nowhere establishes any earlier quarrels between the accused and deceased. On the other hand, the evidence on record show that when PW1 and PW2 went to the said place, found both accused and deceased working together and the deceased never complained to PW1 about earlier quarrel that took place at 8.30 a.m. on that day. Therefore, it cannot be said that, there was any mens rea or ill-will or motive to kill the deceased. Though two blows were given on vital parts, it cannot be said that there was any intention to cause the death of the deceased. Even the weapon alleged to have been used in the commission of offence is a part of tool used by them for crushing jaggery. It appears to be a case where, in the course of quarrel, the accused picked up the weapon and beat twice on the head.
22) As held by the Hon'ble Apex Court, merely because the injuries were on vital parts, does not itself automatically mean that the accused had an intention to cause the death or that the said blow was given by the accused to cause death.
23) In Chhotey Lal v. State1, the Apex Court was dealing with a situation where the accused is said to have caused a single sickle blow to the deceased without any premeditation and previous ill-will or animosity. The High Court took the view that the incident took place in the spur of moment, as a result of an altercation, and held that, the case will fall under Exception 4 of Section 300 IPC and therefore, the accused was held liable for conviction under Section 304 Part II of the IPC.
1 1998 (1) ACR 771 14
24) Mavila Thamban Nambiar v. State of Kerala2 was a case where, the appellant gave one blow with a pair of scissors on the vital part of the body of the deceased and the court held that, it would be reasonable to infer that he had knowledge that any injury with the pair of scissors on the vital part would cause death though he may not have intended to commit the murder.
25) Similarly in Joseph v. State of Kerala3 the Apex Court held that, if an occurrence takes place on a trivial matter resulting in quarrel and the accused inflicted two lathi blows on the head of the deceased which proved fatal, it cannot be said that the accused intended to cause such bodily injury which was sufficient in the ordinary course of nature to cause death. The accused can be attributed with knowledge that by inflicting such injury he was likely to cause death and such an offence falls under Section 304 Part II of the I.P.C. and not under Section 302, IPC.
26) To invoke exception (4), the requirements that are to be fulfilled have been laid down by the Apex Court in Surinder Kumar vs. Union Territory of Chandigarh4, which are as under:-
"7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must 2 1997 ACC 406 3 1995 SCC 165 4 (1989) 2 SCC 217 15 not have taken any undue advantage or acted in a cruel manner.
Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.............."
27) Further in case of Arumugam vs. State, Represented by Inspector of Police, Tamil Nadu5, in support of the proposition as to the circumstances under which exception (4) to Section 300 IPC can be invoked if death is caused, explained as under:-
"18. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'."
28) In the light of the judgments referred to above and having regard to the fact that the incident in question took place as a result of an altercation on a trivial matter, leading to accused inflicting two blows on the head of the deceased, without any premeditation or previous ill-will or animosity, we hold that the offence punishable under Section 302 IPC under which the accused is convicted by the trial court by judgment dated 20.11.2014 in Sessions Case No. 254 5 (2008) 15 SCC 590 16 of 2014 on the file of the I Additional Sessions Judge -FAC- District and Sessions Judge, Chittoor, is liable to be altered to Section 304 Part-II IPC and accordingly the sentence of imprisonment for life imposed on the appellant is altered to imprisonment for a period of seven years. The fine imposed is confirmed. The period of imprisonment undergone by the accused shall be given set-off.
29) With the above modification, the Criminal Appeal is partly allowed.
30) As a sequel, Miscellaneous Petitions, if any pending, shall stand disposed of as infructuous.
_______________________________ JUSTICE C. PRAVEEN KUMAR ______________________________ JUSTICE BATTU DEVANAND Date: 28/05/2020 SM.
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THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND THE HON'BLE SRI JUSTICE BATTU DEVANAND Criminal Appeal No. 34 of 2016 (Per Hon'ble Sri Justice C.Praveen Kumar) Date: 28/05/2020 SM.