Andhra HC (Pre-Telangana)
Bashapaka Laxmaiah And Anr. vs State Of A.P. on 25 June, 2001
Equivalent citations: 2001(2)ALD(CRI)225, 2001(2)ALT(CRI)154, 2001CRILJ4066
Author: R.M. Bapat
Bench: R.M. Bapat
JUDGMENT R.M. Bapat, J.
1. The appellants herein are the Accused 1 and 2 in S.C. No. 622 of 1997. They were tried by the learned II Additional Sessions Judge, Warangal, for an offence punishable under Section 302 r/w 34 IPC. On evidence, the learned judge convicted them and sentenced each of them to suffer imprisonment for life and also to pay a fine of Rs. 200/-, in default to suffer simple imprisonment for one month.
2. Aggrieved by the order of conviction and sentence, the accused-appellants have filed the present appeal.
3. The gravamen of the charge against the accused was that on 25.8.1996 at about 8.00 p.m., they caused the death of the deceased named Bashapaka Soma Mallaiah. The prosecution story can be briefly narrated as follows:
The accused, the material prosecution witnesses, and the deceased were residents of Kadavendi village, Devaruppala Mandal, Warangal District. PW-1 happened to be the brother of the deceased. PW-2 happened to be the cousin brother of the deceased. PW-3 is the wife of the deceased. PW-4 is the mother of the deceased.
4. It is further stated by the prosecution that 10 years prior to the incident, the deceased had illicit intimacy with the wife of A-2. The accused No. 2 raised a dispute before the elders and gave divorce to his first wife and since then A-2 developed grudge against the deceased. On 25.8.1996 at about 6.00 p.m., the deceased, his wife and other members of the family were proceeding to Pochamma temple by carrying 'bonalu' in a procession. A-2 put his leg against the leg of the deceased, due to which there was some altercation between A-2 and the deceased. PWs. 2 and 5 intervened and subsided the quarrel. At about 8.00 p.m., on 25.8.1996, the deceased and PWs. 2 and 4 were returning to their house. When they reached the house of one Jolu Somaiah situated at the corner of the lane, A-2 caught hold of the deceased and A-1 beat the deceased with a stick on his head, back, and neck. The deceased fell down. PWs 1 and 2 shifted the deceased and took him to PW-6, RMP doctor, who examined the deceased and declared him dead.
5. On 26.8.1996 at about 12.00 noon, PW-1 gave written report to the police station at Devaruppala. PW-11, who was Assistant Sub-Inspector of Police, received the report Ex.P-1 given by PW-1. He, on the strength of the said report, registered the case in Cr. No. 24 of 1996 against the accused under Section 302 r/w 34 IPC. He issued express copies of the FIR to all concerned.
6. PW-11 proceeded to the house of the deceased and conducted inquest over the dead body of the deceased in the presence of PW-7. Ex.P-2 is the inquest report. PW-11 examined PWs. 1 to 5 and recorded their statements. He then went to the scene of offence and seized blood stained earth and controlled earth in the presence of PW-7 and also drew a rough sketch of the scene of offence, which is marked as Ex.P-12. Ex.P-3 is the panchanama of the scene of offence. PW-11 handed over the case diary to PW-12, who happened to be Circle Inspector of Police, Jangoan. PW-13, Civil Assistant Surgeon, Government Hospital, Jangoan, conducted autopsy over the dead body of the deceased and issued post-mortem certificate, which was marked as Ex.P-13. According to him, the cause of death was due to head injury and haemorrhage and shock.
7. On 27.8.1996, PW-12 proceeded to the scene of offence and verified the investigation done by PW-11 and examined PW.6 and two others. Then requisition was sent to IV Additional Judicial First Class Magistrate, Warangal, to record the statement of PWs.1 and 10 under Section 164 Cr.P.C. Unfortunately, these statements were produced in the court by examining the Magistrate and they were marked as Exs.P-8 and P-9. PW-12 arrested the accused on 2.6.1996 and recorded their confessional statements. On the basis of the confession of A-1, MO-3 wooden stick was discovered and seized by police under panchanama Ex.P-4. Thus, on completion of investigation, charge sheet was filed. The material objects were sent to Forensic Science Laboratory. The report was produced on record as Ex.P-11.
8. In order to establish the fact that the accused were responsible for causing the death of the deceased, the prosecution examined, in all, PWs.1 to 13 and marked Exs. P-1 to P-13 and MOs 1 to 3. On behalf of the defence, Ex.D-1 relevant portion of 161 Cr.P.C statement of PW-4 was marked. The defence of the accused was one of total denial. In order to prove the fact that the deceased died homicidal death, the prosecution relied upon the evidence of PW-11 and also on the evidence of PW-7. PW-11 had conducted the inquest over the dead body of the deceased and PW-7 had acted as panch and Ex.P-2 is the inquest report. After the inquest was over, the dead body was sent to PW-13, who on receipt of requisition, conducted autopsy over the dead body of the deceased and noticed the following external injuries.
9. External Examination:
Lacerated injury on the scalp on the left parietal region measuring 5" x 1/2" x 1/2" length.
2. Fracture of left parietal bone extending to Rt. Perietal bone 7" x 1/4" length.
10. Internal Examination:
Fracture left parietal bone extending to right parietal bone 7" x 1/4" length.
Brain C/Section liquefied. Tongue protruded out due to putrefactive changes.
Hyoid bone Normal., Ribs and chest wall normal. Diaphragm, Normal Mediastinum and thymus Normal.
Oesophagus Normal, Trachea and Bronchi Normal, Pleural Cavities Normal.
Stomach and contentions: Empty.
Spleen: Cut Section Dark red colour.
Kidneys: L/S red and congested.
Left: L/S red congested.
11. The doctor opined that the deceased died due to head injury and due to internal haemorrhage and shock and issued Ex.P-13 post-mortem certificate.
12. Considering the evidence led by the prosecution on the point of homicidal death, we hold that the prosecution could prove that the deceased died homicidal death. The prosecution mainly relied upon the evidence of PWs. 1, 2, 3, and 4. Out of these four witnesses, only PWs. 2 and 4 are eye witnesses to the incident. PW-1, who happened to be the brother of the deceased, was not an eye witness to the incident. While giving evidence in examination-in-chief, PW-1 pretended that he is an eye witness to the incident. But in later part, in his evidence, he stated that on hearing from PW-2, he went to the scene of offence and noticed that the deceased was lying with injuries on his person. Then, PW-1 gave first information report Ex.P-1 and on the strength of which, the police machinery was set in motion. PW-2, who happened to be the first cousin of the deceased, was an eye witness to the incident and PW-4, the mother of the deceased, is also an eye witness to the incident. Both the witnesses have deposed regarding the earlier incident which happened at 6.00 p.m in the village. A-2 alleged to have obstructed the deceased, who was carrying 'bonalu' on his head. There was altercation, but fortunately that was separated by PWs. 1 and 5.
13. It is further the case of the prosecution through the mouth of PWs. 2 and 4 that, in order to avoid further complications and quarrels, they decided to go home, and accordingly PWs. 2 and 4 with the deceased and some members of the family started proceeding towards their house. When they reached at the corner house, which was owned by Jolu Somaiah, A-1 and A-2 alleged to have appeared at the scene of offence. A-2 caught hold of the deceased and A-1 gave a hit on his head. On getting the hit on the head, the deceased fell down.
14. The evidence of PWs. 2 and 4 corroborate the evidence of each other. Moreover, immediately after the occurrence, PW-2 informed the incident to PW-1, which is also a corroboration to the evidence of PW-2 and thereafter PW-1 gave a first information to the police. PW-3 happened to be the wife of the deceased. She was not an eye witness to the incident. She appeared at the scene of offence and she was told by PW-2 that A-1 and A-2 had caused the injury on the person of the deceased. The evidence of PW-3 also gives corroboration to the evidence of PWs. 2 and 4.
15. Considering the evidence led by the prosecution, we have no hesitation to hold that the A-1 and A-2 were responsible for causing the death of the deceased.
16. Now, the question that arises for consideration is as to what offence is made out. It is evident from record that A-2 caught hold of the deceased and A-1 gave a hit on the head of the deceased. This act will not amount to an act of causing murder, but the fact on record is proved that the accused had knowledge that the death is likely to be caused. A single hit was given; therefore, we hold that the accused-appellants are liable to be punished for an offence punishable under Section 304 Part II of IPC.
17. In the result, we confirm the conviction, but set aside the sentence of life imprisonment and they are made to suffer imprisonment for five years for the offence punishable under Section 304 Part II of IPC.
18. Before parting with the case, we would like to bring certain irregularities on record. The learned judge, while recording the evidence of PW-8, who happened to be the panch witness when A-1 and A-2 alleged to have made a confession before the panch witness and the police officers, observed as follows;
" ... Police asked us to enquire with A-1 and A-2. Accordingly, I enquired with A-1 and A-2. A-1 confessed that there is illicit intimacy between the wife of A-2 and the deceased. This connection with the A-2's wife was about 10 years back. Since then they bore grudge against the deceased and they intended to kill the deceased. Further A-1 and A-2 confessed that on the day of Bonalu Festival they killed the deceased by beating with a stick on the head, on the neck and also on the back of the deceased. A-2 caught hold of the deceased, A-1 beat with a stick on the deceased. A-1 stated that the stick was in his house and A-1 produced the stick from his house. A-1 lead us to his house who went inside and brought the stick produced from his house."
19. The evidence of PW-8 recorded by the learned Judge is totally inadmissible. Out of the portion recorded as a confessional statement, the only portion that 'the accused produced stick from his house' is admissible. The learned Sessions Judge is directed to read carefully Sections 25 and 27 of the Evidence Act and he is directed not to commit such mistakes hereinafter. The learned Judge did not discuss the evidence of PWs 1 to 4 at all. But simply stated that A-1 and A-2 caught hold of the deceased and A-1 beat the deceased on his head as deposed by PWs 1 and 4. In fact, PWs 1 and 3 were not eye witnesses to the incident at all. This type of marshalling of evidence is totally deprecated. The third irregularity what we have noticed in this case is that the learned Judge had summoned the Magistrate to prove 164 statement recorded by him of two witnesses, which were marked as Exs.P-5 and P.6.
20. Repeatedly, we have issued instructions that Statement under 164 Cr.P.C. is not a substantive piece of evidence. It is not necessary to call the Magistrate to give evidence to prove 164 Statement. Statements under 164 Cr.P.C. are available to the defence for contradiction by obtaining the certified copies. The 164 Statement recorded by the Magistrate is a public document. Such practice, hereinafter, be stopped.
21. For the reasons stated to above, we allow the appeal in part to the extent as indicated above. A copy of the judgment be circulated to the learned Judge by name.