Andhra HC (Pre-Telangana)
Upparapalli Tirumala Rao vs The State Of A.P. Rep. By Public ... on 30 July, 2004
Equivalent citations: 2004(2)ALD(CRI)551, 2004CRILJ4514
JUDGMENT P.S. Narayana, J.
1. Accused No. 1 in S.C. No. 112/93 preferred the present Criminal Appeal aggrieved by the Judgment of the learned Sessions Judge, Khammam convicting him and directing to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 1000/-, in default to undergo rigorous imprisonment for 3 months for the offence under Section 325 I.P.C. Though the appellant/A-1 was convicted under Section 325 I.P.C. and A-2 was convicted under Section 323 I.P.C. inasmuch as A-2 had served the sentence he had not preferred any Appeal.
2. The accused were charged with the offence under Section 302 r/w. section 34 I.P.C. and the learned Sessions Judge after recording oral and documentary evidence and findings ultimately arrived at the conclusion that the said charges were not proved, but convicted A-1 under Section 325 and A-2 under Section 323 I.P.C. The case of the prosecution is that the deceased Nageswara Rao and the accused are neighbours and friends. The appellant/A-1 is the brother of A-2. The deceased and the appellant/A-1 worked as Cleaners at Nandyala and returned to Khammam a month ago. On 10-6-1992 the deceased and his brother Sadasiva Rao and the appellant/A-1 went to bazaar, consumed liquor and from there went to Charan Bar and took food and returned to their houses. On the same day, at about 6.30 p.m., the deceased, appellant/ A-1 and A-2 went to a cutlet pushing cart located before Dhanalaxmi Automobile shop on the Trunk Road. The accused picked up quarrel with the owner Sajjan demanding seven gupchip, a sort of food item, instead of five for a rupee. The deceased intervened and tried to stop the quarrel on which the appellant/A-1 and A-2 grew wild and asked him not to interfere, upon which the deceased pushed A-2 which resulted his fall on the ground. The appellant/A-1 could not tolerate the act of the deceased on his handicapped elder brother and in a sudden provocation picked up a stick from a stationed tractor belonging to Bejawada Narasimha Rao and beat the deceased on his head. The deceased received bleeding injury and began running away. The appellant/A-1 and A-2 chased him through Sangeethamvari Veedhi, attacked him, fell him on ground and beat him. Boyapati Chittemma and Bathula Srinivas, residents of the locality interfered and the accused left threatening them with dire consequences. Number of persons witnessed the incident and the deceased returned to his house where he told his mother and brother about the details of the offence. The deceased was shifted to Sirisha Nursing Home where one Konnoji Bhaskar, a compounder, gave treatment. Thereafter, the deceased came back to his house and slept on a cot. On 11-6-1992 in the early hours, the deceased succumbed to the injuries. Police after coming to know of the same came to the house of PW-1 at about 8 a.m. H.C. 151 recorded the statement of the mother of the deceased and registered it as Crime No. 118/92 under Section 302 I.P.C. and submitted copies of F.I.R. to all the concerned. The C.I. Khammam (Rural) who was in charge of Khammam town, took up investigation and held inquest over the body of the deceased before Panchas and seized material objects and recorded the statements of witnesses and sent the body to post mortem examination to Government Hospital. The Medical Officer who conducted post mortem opined that the cause of death was due to shock and head injury. The appellant/A-1 and A-2 were arrested on 19-6-1992 at 11 p.m. and were sent to judicial remand. Hence the accused were charged under Section 302 I.P.C. r/w. Section 34 I.P.C. Inasmuch as the matter is exclusively triable by a Court of Session, the I Additional Judicial First Class Magistrate committed the matter to the Court of Session and the accused pleaded not guilty.
3. The prosecution had examined PW-1 to PW-17 and Exs. P-1 to P-9 were marked. MO-1 stick, Mos. 2 and 3 blood stained earth and control earth, also were marked.
4. PW-1, Karini Dhanalaxmi, is the mother of the deceased who deposed about all the details how the incident had happened. PW-2 also deposed about the incident and deposed that he advised PW-1 to go to police station and give a complaint. PW-3 is yet another witness who had deposed about the incident and he had interfered and tried to prevent the incident. The next day morning police came and examined him. This witness was cross-examined at length. PW-4 deposed that he was watching Telugu news and he heard the cries of PW-3 and there was fighting on the road and he went to road and PW-3 called him and he saw A-1 and A-2 beating Nageswara Rao, the deceased, and they were also scratching the deceased with fingers and he separated them. This witness also had corroborated the evidence of other witnesses relating to the incident.
5. PW-5 is running a pan shop business, but he deposed that about 4 or 5 years back in the evening around 6.30 or 7 while he was sitting in his shop, three or four persons ran away from in front of his shop into a lane called Sangeethamvari street. PW-7 deposed that on the night of that day when he returned from the shop he saw the deceased wearing bandage to his head and enquired PW-1 about the same and she informed that the appellant/A-1 and A-2 beat him, and the next day morning the deceased died. PW-8 is the owner of a tractor and he heard the godava at the push-cart tiffins cart, but he deposed that he cannot identify that person is one amongst the appellant/A-1 and A-2 and this witness was declared hostile. PW-9 also had deposed about the incident and he has supported the version of the prosecution. PW-10 is running a battery shop. He knows A-1 and A-2 and also the deceased Nageswara Rao who died and he deposed about the quarrel between the appellant/A-1 and A-2 and the deceased at the push cart eatable shop. PW-11 was declared hostile. PW-12 deposed that he worked as a compounder and the deceased was given first aid. PW-13 is the panch witness and deposed about the panchanama Ex.P-5. PW-14 is the Doctor who conducted autopsy over the deceased on requisition and found the following external and internal injuries:
6. EXTERNAL INJURIES:
a) One contusion 3" x 2" over the right Hypochondria
b) A contusion - 3" x 2" over the right thigh over the greater tronchanter
c) A contusion 3" x 2" over the right upper arm
d) Multiple small abrasion - scratch marks over the neck and also over the right claverlia region
e) A sutured laceration over the left fronto parietal region of the head 21/2" in length.
f) A contusion on the back of left arm 3" x 2"
g) An abrasion on the left side of the trunk from the scapular region to flank (kidney region) 10" x 5".
INTERNAL INJURIES:
a) On opening of the skull, sub peroosteal collection of blood - sealed along with sub-dural hymotema over the occipetal globe of the brain.
7. The evidence of the Doctor supports the version of the prosecution. PW-15 deposed that he had inspected the area of gupchip push cart and other areas and police seized blood stained earth and the panchanama was prepared which is Ex.P-7. The blood stained earth is MO-2 and non-blood stained earth is MO-3. PW-16 is the Head Constable who deposed about the receiving of phone call stating that one person died and he went to the house of PW-1 and found the dead body of the deceased, the son of PW-1 on a cot and recorded the statement of PW-1, Ex. P-1, and registered it as crime No. 118/92 under Section 302 I.P.C. The original F.I.R. is Ex. P-8 and he issued express F.I.R. to the concerned Magistrate and copies to the concerned Police Officers. PW-17 deposed that when he was on casual leave, the C.I. of Police A. Damodar Rao (LW-21) held charge of the post of Khammam town C.I. and Sri Damodar Rao passed away in the land mine occurred in October 1996 at Jakaram of Warangal District. PW-17 further deposed that he is acquainted with the handwriting and signatures of Damodar Rao and he can identify the same. On 11-6-1992 Damodar Rao (LW-21) received Ex. P-8 and he inspected the scene of offence and examined PW-1, PW-2, PW-9 and PW-10 and others and recorded their statements. On 19-6-1992, LW-21 arrested A-1 and A-2 and sent them for remand. After expiry of leave PW-17 assumed duty and after verification of the investigation and after being satisfied filed charge sheet against A-1 and A-2 on 13-7-1992.
8. The learned Judge had appreciated the oral and documentary evidence in detail and arrived at a conclusion that due to the sudden provocation inasmuch as the handicapped brother was thrown, the fateful incident happened and it will not fall under Section 302 I.P.C. I had carefully scrutinized the whole evidence available on record and also the findings recorded by the learned Special Judge in this regard and I do not see any reason to differ with the findings which had been recorded by the learned Special Judge and the said findings are hereby confirmed. However, the learned Additional Public Prosecutor brought to my notice that there is a specific provision i.e., Section 335 I.P.C. which deals with Voluntarily causing grievious hurt on provocation and on facts Section 335 I.P.C. would be attracted and the offence may not fall under Section 325 I.P.C. In the light of the facts explained above, I am satisfied that the appellant is liable to be convicted on the material available on record only under Section 335 I.P.C. It is also brought to my notice that for about 5 months 20 days, the appellant was in remand and for about 5 months he was in jail after conviction. In the light of the peculiar facts and circumstances it is clear that though the appellant/A-1, A-2 and the deceased were close friends, just on provocation on the fateful day that the handicapped brother was thrown and this unfortunate incident happened which ultimately resulted in the death of the deceased. Taking the over all facts and circumstances into consideration and also taking into consideration the fact that the wife and the children are dependents on A-1, who has to attend to coolie work for eking out livelihood though the conviction under Section 335 I.P.C. is to be awarded, as far as the sentence is concerned Rigorous imprisonment for 5 years and imposition of fine of Rs. 1000/-, in default Rigorous imprisonment for 3 months, is definitely on the higher side and hence the sentence imposed is hereby modified to Rigorous imprisonment for one year, but however imposition of fine of Rs. 1000/- is hereby confirmed. Thus the sentence is accordingly modified. The bail bonds are hereby cancelled and the appellant shall serve the remaining sentence, if any, since it is brought to my notice that for about more than 10 months already he had been in custody and remand. It is needless to say that the appellant/A-1 is entitled for set off of the said period.
9. Subject to the above modification, the Criminal Appeal shall stand dismissed.