Andhra Pradesh High Court - Amravati
CRLA/572/2015 on 7 November, 2022
Author: C.Praveen Kumar
Bench: C.Praveen Kumar
THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR
AND
THE HONOURABLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
CRIMINAL APPEAL No.572 of 2015
JUDGMENT:(Per Hon'ble Sri Justice C.Praveen Kumar)
1) Sole accused is in Sessions Case No.328 of 2012 on the file of the Court of Principal Sessions Judge, Prakasam at Ongole is the appellant herein. He was tried for an offence punishable under Section 302 of the Indian Penal Code, 1860 (for short 'I.P.C') for causing the death of one Kankipati Nageswara Rao @ Nagesh on 01.03.2012 at about 10.30 P.M in Mamatha Wines situated in Kallukotla Bazar, Chimakurthy. Vide judgment dated, 02.06.2015, the learned Sessions Judge convicted the accused and sentenced him to suffer imprisonment for life and to pay a fine of Rs.10,000/-, in default of payment of fine amount, to suffer simple imprisonment for a period of six months. Challenging the same, the present Criminal Appeal came to be filed. 2
2) The facts in issue are as under:
(i) P.W.1 is the wife of the deceased, while P.W.3 is her brother. P.W.2 was examined as eye witness to the incident. It is said that the deceased was doing centring work. On the morning of the date of offence i.e., on 01.03.2013, P.W.2, deceased and one Premaiah were attending the centering work of one Mariyadas at Chimakurthy village. After completion of work, when they demanded labour charges, the said Mariyadas told them to come one hour thereafter. At about 8.30 P.M., they went to Mariyadas, who gave them a sum of Rs.2,000/-.
Thereafter, they went to Kallukotla bazaar and purchased a full bottle of Brandy. It is said that in the verandah portion of the brandy shop, they consumed liquor. At that time, the deceased went and brought bananas. The accused also consumed beer sitting at a little distance away from where P.W.2 and others were sitting. When P.W.2 and others started consuming liquor, the accused also came into the said varandah and started consuming liquor. At about 10.30 P.M., the owner of the shop requested all of them to leave the place, as it was time for him to close the shop. At that point of time, 3 the deceased is said to have fetched half bottle of brandy. After consuming half bottle, the deceased approached the accused and started chatting with him by putting his hands on the shoulders of the accused. At that time, the deceased questioned the accused as to why he assaulted P.W.2 previously. By that time, they were standing on the road in front of the shop. On that, the accused fisted the deceased on his face. A quarrel ensued between them. Then the accused picked up a stick lying at the scene of offence and dealt a blow on the head of the deceased. The offence occurred at a distance of 15 to 20 feet from the place where they were standing. Thereafter, the accused said to have left the scene with the stick.
(ii) Information about the incident was given by P.W.2 to P.W.3, who in turn informed the same to P.W.1. P.Ws.1 and 3 proceeded to the said spot and noticed the deceased with a bleeding injury on the head. When enquired, the deceased is said to have told P.W.1 that the accused assaulted him with a stick. After the deceased was shifted into the auto, P.W.2 and 4 Premaiah left the scene of offence. The deceased was shifted to RIMS hospital, Ongole, by that time, he was unconscious.
(ii) P.W.6, who worked as Head Constable of II Town Police Station, Ongole, at the relevant point of time, on receipt of intimation, proceeded to the hospital and recorded the statement of P.W.1, as the victim was unconscious. The said statement is marked as Ex.P1. On the next day, i.e., on 02.03.2012 at about 9.00 or 9.30 A.M., the deceased succumbed to injuries. Information about the death along Ex.P1 was received by P.W.8, Sub-Inspector of Police, Chimakurthy. Basing on the same, a case in Crime No.20 of 2012 of Chimakurthy Police Station was registered under Section 302 I.P.C and issued First Information Report to all concerned. Ex.P12 is the F.I.R.
(iii) Further investigation in this case was taken up by P.W.10-Inspecor of Police, Ongole Rural police station, who went to the scene of offence and prepared a rough sketch of the scene of offence which is marked as Ex.P17. He also prepared a scene observation report which is marked as Ex.P13. At the scene of offence, he collected the blood stains with cotton 5 swabs and also got photographed the scene of offence. The said photographs were marked as Exs.P2 and P3. Later, he conducted inquest over the dead body of the deceased in the presence of P.W.9 and another. Ex.P14 is the Inquest report. At the time of inquest, he examined P.Ws.1 to 3, recorded their statements and thereafter sent the dead body for Post Mortem examination.
(iv) P.W.7-Assistant Professor in Department of Forensic Medicine, RIMS, Ongole, conducted autopsy over the dead body of the deceased and issued Ex.P10 Post Mortem Certificate. According to him, the above injuries are possible with a stout stick.
(v) P.W.10, who continued with the investigation, examined P.Ws.4 and 5 and recorded their statements. It is said that on 09.03.2012 at 2.15 P.M., he arrested the accused at Ramatheertham village of Chimakurthy Mandal and recorded his statement. Pursuant to the disclosure statement made by the accused, stick alleged to have been used in the commission of offence, were recovered. M.Os.2 and 3 are the sticks. After collecting all the necessary documents and after 6 completing the investigation, a charge-sheet came to be filed, which was taken on file as P.R.C. No.13 of 2012 on the file of the Court of Special Judicial Magistrate of First Class, Excise Court, Ongole.
3) On appearance of the accused, 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 Sessions Court under Section 209 Cr.P.C. Basing on the material available on record, charge under Section 302 I.P.C. came to be framed, read over and explained to the accused, to which, the accused pleaded not guilty and claimed to be tried.
4) In support of its case, the prosecution examined PW1 to PW10 and got marked Ex.P1 to Ex.P21, besides marking M.O.1 to M.O.5. After completion of prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses, to which he denied. On behalf of the accused, D.Ws. 1 to 3 were examined 7 and marked Ex.D1-relevant portion in Ex.P1-statement of P.W.1.
5) Relying upon the evidence of P.W.2, coupled with the evidence of P.Ws.1 and 3, the learned Sessions Judge convicted the accused. Challenging the same, the present appeal came to be filed.
6) Sri G.Vijaya Saradhi, learned counsel for the appellant, mainly submits that the entire case rests on the solitary testimony of P.W.2, who cannot be treated as a reliable witness. He further submits that the version of P.Ws.1 and 3 is inconsistent with the contents of Ex.P1. According to him, when information about the incident was disclosed by P.W.2 to P.W.3, who in turn informed the same to P.W.1, the same would have definitely reflected in the First Information Report. As the First Information Report is silent on material aspects, he would submit, that there is any amount of doubt whether really P.W.2 has seen the incident. He further submits that in the First Information Report, the defacto complainant as P.W.1 stated that the accused along with others have beaten the deceased, but while giving evidence, the witness speaks about 8 the entire case against the accused only. That being so, according to him, benefit of doubt has to be extended to the accused.
7) On the other hand, Sri S.Dushyanth Reddy, learned Additional Public Prosecutor, opposed the same contending that there are no reasons to disbelieve the evidence of P.W.2, as P.W.2 is a natural witness and his evidence assumes significance. He further submits that merely because he is said to have stolen Rs.200/- from the accused and there was some quarrel between P.W.2 and accused on earlier occasion, the same cannot be a ground to say that whatever spoken by P.W.2 is false. Having regard to the above, he would contend that conviction and sentence imposed by the trial Court warrants no interference.
8) The point that arises for consideration is:
"whether the prosecution has established the guilt of the accused beyond reasonable doubt?"
9) It is to be noted here that P.W.2 was examined as an eye witness to the incident. P.W.2, in his evidence, deposed that three months prior to the incident, there was an incident, 9 in which, the accused slapped him. When he complained to the elders, they advised him not to report to the police. He also deposed that on the date of incident, he along with the deceased and Premaiah went to brandy shop and purchased alcohol. While sitting in the verandah of the brandy shop, they consumed alcohol. While consuming, the accused also came there and started consuming alcohol by sitting at a little distance. At about 10.30 P.M., the owner of the shop asked them to vacate the premises. On that, the deceased purchased half bottle of brandy and after consuming the half bottle, the deceased approached the accused and was chatting with him by putting his hands on his shoulders. At that time, the deceased questioned the accused as to why the accused assaulted him earlier. As a result of which the accused picked up a stick, which was lying at the scene of offence and dealt a blow on the head of the deceased, as a result of which the deceased fell down.
10) It is the case of the prosecution as well as the evidence on record that P.W.2 informed P.W.3 about the incident and thereafter, P.W.3, who is the brother of P.W.1 and brother-in- 10 law of the deceased, rushed to the scene of offence, noticed the deceased lying with head injury and shifted the deceased on to a pial. Thereafter P.W.3 rushed to P.W.1 and informed about the incident to P.W.1, secured an auto, went to the scene of offence and shifted the deceased to hospital. It is their case that by the time they reached the hospital, the deceased was unconscious. It is to be noted that while P.W.1 was in hospital, P.W.6 came and recorded the statement of P.W.1, as the deceased was unconscious, which is placed on record as Ex.P1.
11) It is no doubt true that in Ex.P1, there is no reference to P.W.2. The First Information Report is also silent as to the manner in which the incident took place, but however, there is a reference about the incident in oral dying declaration made by the deceased to P.W.1, when she enquired as to how the incident took place. Reference to P.W.2 in the First Information Report may not assume significance for the reason that information about the incident was given by P.W.2 to P.W.3 and thereafter P.W.3 informed P.W.1 about the same. The evidence of P.W.1 does not anywhere indicate that P.W.2 11 informing P.W.3 about the incident. Therefore, non-mentioning of the name of P.W.2 by P.W.1 in her report may not assume significance.
12) At the same time, it is to be noted that the statement of P.W.1 was recorded, while she was in hospital along with her husband. It appears that the injured was alive by then, but was unconscious. The statement recorded in the hospital, set the law into motion. It is well established principle of law that First Information Report is not an encyclopedia which would contain all the details.
13) Be that as it may, we feel that non-mentioning of the name of P.W.2 in the First Information Report, in our view, may not matter much, for the reason that the information about the incident was not given by P.W.2 to P.W.1. It is no doubt true that First Information Report is silent as to the manner in which the incident took place. But the oral statement made by the deceased to P.W.1, which is consistent with the version of all the witnesses with regard to involvement of the accused in the commission of crime. The statement of deceased and the version of P.Ws.1, 3 and 4 is required to be 12 tested with the evidence of P.W.2. As seen from the record, both of them along with others sat on the pial of brandy shop and consumed alcohol. Thereafter, the deceased went towards the accused and while chitchatting, questioned the accused as to why he assaulted P.W.2. Then the accused is said to have fisted on the face of the deceased and thereafter, picked up the stick available in the scene and dealt a single blow on the deceased. It is nobody's case that the accused was armed with a weapon at the time of incident. On the other hand, P.W.2 categorically deposed that the accused beat the deceased with a stick on his head. It is also to be noted that both of them were in drunken condition.
14) In the absence of any prior incidents between the accused and deceased, except a petty incident which took place between the accused and P.W.2 about three months prior to the incident and in that incident, the accused slapped P.W.2, it appears that the relationship between the accused and the deceased was normal, as both of them were found chitchatting even prior to the incident. Therefore, in our view, it cannot be said that the accused had any intention to cause the death of 13 the deceased, but definitely he has knowledge that this act of accused may lead to the death of the deceased.
15) A perusal of the Post Mortem report, which is placed on record as Ex.P10, would show that there are seven injuries on the body of the deceased i.e., injury on left eyebrow, left cheek, contusions around the eyes apart from two contusions on the right front parietal region and left frontal region etc. Though the doctor was made to say that a single blow is liable to cause all the injuries mentioned in the Post Mortem, but when the accused has dealt a single blow on the head of the deceased, the injuries are found in different places on his facial region. Be that as it may, it is also to be noted that the doctor, in his evidence, does not say that all the seven injuries were sufficient to cause the death of the deceased in the ordinary course of nature.
16) At this stage, learned counsel for the appellant would contend that there was no intention on the part of the appellant to cause the death of the deceased and the alleged incident was due to a sudden quarrel and on the spur of moment, hence, it is a fit case to modify the conviction of 14 accused to Section 304 Part-II I.P.C from 302 I.P.C. In support of his plea, he relied upon the Judgments of the Hon'ble Supreme Court in 1) Kala Singh @ Gurnam Singh v. State of Punjab1, 2) Udiya v. State of Madhya Pradesh2 and
3) Govindan v. State represented by the Deputy Superintendent of Police3
17). Hence, taking into consideration the manner in which the incident took place, having regard to the fact that the incident took place in a spur of moment and in the absence of any ill-will, motive or prior enmity between the accused and the deceased, we are of the view that the conviction of the appellant/accused has to be scaled down to one under Section 304 Part-II I.P.C.
18) Hence, the appeal is allowed in part. The conviction against the accused under Section 302 IPC in Sessions Case No.328 of 2012 on the file of the Principal Sessions Judge, Prakasam at Ongole, is set aside and the appellant/accused is convicted for the offence punishable under Section 304 Part-II 1 (2021) 10 Supreme Court cases 744 2 (2019) 15 Supreme Court Cases 65 3 (2022) 3 Supreme Court Cases 82 15 I.P.C and sentenced to undergo rigorous imprisonment for a period of five years. The period of remand undergone by him during investigation, trial and after conviction shall be given set off, under Section 428 Cr.P.C. Consequently, the appellant shall be set at liberty forthwith on completion of five years rigorous imprisonment, if not required in connection with any other case.
Consequently, miscellaneous petitions, if any, pending shall stand closed.
_______________________________ JUSTICE C.PRAVEEN KUMAR ___________________________________ JUSTICE B.V.L.N.CHAKRAVARTHI Date :07.11.2022 MP 16 172 THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HONOURABLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI CRIMINAL APPEAL No.572 of 2015 Date : 07.11.2022 MP