Andhra Pradesh High Court - Amravati
Kummara Mallela Venkataramana, vs The State Of A.P., Rep By Pp., on 20 April, 2023
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
CRIMINAL APPEAL NO.130 OF 2009
JUDGMENT:-
This Criminal Appeal is filed by the appellant, who was the second accused in Sessions Case No.61 of 2007, on the file of Additional Sessions Judge, Hindupur, challenging the judgment, dated 04.02.2009, where under the learned Additional Sessions Judge, Hindupur, as against the charge under Section 302 of the Indian Penal Code ("I.P.C." for short) framed against the present appellant and first accused exonerated the first accused of the charge, but found the second accused (present appellant) guilty of the offence under Section 304 Part-II of I.P.C. and convicted him under Section 235(2) of the Code of Criminal Procedure ("Cr.P.C." for short) and after questioning him about the quantum of sentence, sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs.200/-, in default to suffer simple imprisonment for one month.
2) The parties to this Criminal Appeal will hereinafter be referred as described before the trial Court for the sake of convenience.
3) The Sessions Case No.61 of 2007, on the file of Additional Session Judge, Hindupur, arose out of a committal 2 order in P.R.C.No.60 of 2006, pertaining to Crime No.14 of 2006 of Amadagur Police Station.
4) The case of the prosecution, in brief, according to the charge sheet filed by the Inspector of Police, Amadagur Police Station before the Additional Judicial Magistrate of First Class, Kadiri, pertaining to Crime No.14 of 2006 of Amadagur Police Station under Section 302 r/w 34 of I.P.C is as follows:
(i) A.1 is the wife of A.2. Both the accused are residents of Kolimirallapalli village of Amadagur Mandal. The defacto-
complainant Derangula Chinnappalla @ Chinnappaiah (deceased) is resident of Kolimirallapalli village. L.W.1- Derangula Venkata Lakshmi and L.W.2-Derangula Anil Kumar are the wife and son of the defacto-complainant (deceased) respectively.
(ii) On 29.03.2006 at about 4-30 p.m., L.W.1 sent her son L.W.2 to the street boring tap to bring water. When L.W.2 went there and when he was taking water, the daughter of the accused by name Vara Lakshmi objected L.W.2 in taking the water and picked up a quarrel with L.W.2 and beat him. L.W.2 came back to his house and informed about the incident to his mother, L.W.1. In the evening, when the defacto-complainant (deceased) returned to his house, L.W.1 informed him about the quarrel between L.W.2 and Vara Lakshmi at the boring tap. As 3 it is children's galata, the defacto-complainant (deceased) asked his wife L.W.1 not to take it as serious. Later, he went to his tractor owner's house Shankar Reddy. At about 8-00 p.m., while he was returning to his house, L.W.1 went to the house of the accused along with L.W.2 to question them as to why their daughter beat L.W.2. When L.W.1 questioned A.1 about the incident, A.1 picked up galata with L.W.1 and both of them quarreled with each other. In the meanwhile, A.2 also intervened and both the accused started quarrelling with L.W.1. By that time, the defacto-complainant (deceased), who was returning to his house, intervened and advised the accused not to quarrel as it it only a children's issue. Both the accused did not listen the words of the defacto-complainant (deceased). A.1 caught hold the hair of the defacto-complainant (deceased) and A.2 brought an agricultural instrument (Thonika Katti) from their verandah and beat on the head of the complainant (deceased) and caused a bleeding injury knowing that the injury would cause the death of the complainant (deceased). The said agricultural instrument was stuck in the head of the complainant (deceased). L.W.3-Kasula Muneppa, L.W.4-Derangula Ravi and L.W.5-Upputholla Sivaiah witnessed the incident. L.W.4 and L.W.5 removed the agricultural instrument from the head of the complainant (deceased). The complainant fell unconscious. 4 L.W.1 shifted her husband to the Government Hospital, Kadiri, for treatment.
(iii) On 30.03.2006 L.W.12-Asst. Sub-Inspector of Police of Kadiri Town Police Station recorded the statement of complainant in the presence of L.W.10-Dr. Tippendra Naik, Civil Assistant Surgeon, Government Area Hospital, Kadiri and forwarded the said statement to L.W.13-Sub-Inspector of Police, Amadagur Police Station on point of jurisdiction.
(iv) On 02.04.2006 L.W.13 on receipt of hospital intimation and the statement of complainant, registered the same as a case in Crime No.14 of 2006 under Section 324 r/w 34 of I.P.C. of Amadagur Police Station and took up investigation. He recorded the statement of complainant at Government General Hospital, Ananthapur, seized the blood stained clothes of him under the cover of police proceedings and visited the scene of offence and seized the agricultural instrument (Thonikala Katti) in the presence of L.W.6-Kadagutta Siva Shankar Reddy and L.W.7-Uyala Narasimhulu, the mediators, under the cover of scene observation mahazar. He also prepared rough sketch of the scene of offence.
(v) On 06.04.2006 L.W.13 received death intimation from the Government General Hospital, Ananthapur, as such, he altered the Section of law into 302 r/w 34 of I.P.C from 324 r/w 5 34 of I.P.C., and issued altered express F.I.R. to all the concerned. He intimated the incident to SDPO, Kadiri and obtained oral instruments for conducting investigation. He conducted inquest in the presence of panchayatdars over the dead body of the deceased and later sent the dead body for postmortem examination. L.W.10-the medical officer, who gave first treatment to the complainant (deceased), issued would certificate, stating that the complainant received grievous injury. L.W.11-the Professor of Forensic Medicine, Government General Hospital, Ananthapur, conducted postmortem examination and issued postmortem report opining that the deceased died due to head injury associated with peritonitis. L.W.14-Inspector of Police, Nallamada, verified the investigation conducted by L.W.13 and found it on correct lines. He sent the agricultural instrument (crime weapon) along with the blood stained clothes through the jurisdictional Magistrate to RFSL, Tirupati for Biological and Serological examinations. On 12.07.2006 Assistant Director issued the report. On 18.07.2006 A.1 surrendered before the jurisdictional Magistrate and on 21.04.2006 A.2 surrendered before the jurisdictional Magistrate. Both of them got bail. Both the accused attacked the deceased with an intention to cause death. Hence, they are liable to be punished under Section 302 r/w 34 of I.P.C.
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5) The learned Additional Judicial Magistrate of First Class, Kadiri, took cognizance under Section 302 r/w 34 of I.P.C. After appearance of the accused, copies of documents were furnished to them as required under Section 207 of Cr.P.C. The learned Additional Judicial First Class Magistrate, Kadiri by exercising powers under Section 209 of Cr.P.C., committed the case to the Court of Sessions on the ground that the case is exclusively triable by Court of Sessions. The learned Sessions Judge after numbering the Sessions Case made over same to the Additional Session Judge, Hindupur.
6) On appearance of both the accused before the learned Additional Sessions Judge, Hindupur,, a charge under Section 302 r/w 34 of I.P.C. was framed and explained to both the accused in Telugu, for which they pleaded not guilty and claimed to be tried.
7) To bring home the guilt against the accused, the prosecution before the Court below, P.W.1 to P.W.11 were examined and Ex.P.1 to Ex.P.18 were marked. During the cross examination of P.W.2, Ex.D.1 was marked. The prosecution further M.O.1 and M.O.2 were marked. After closure of the evidence of the prosecution, accused were examined under Section 313 of Cr.P.C. with reference to the incriminating 7 circumstances appearing in the evidence let in, for which they denied the same. They did not let in any defence evidence.
8) The learned Additional Sessions Judge, Hindupur, on hearing both sides and on considering the oral as well as documentary evidence, found A.1 not guilty of the charge, but found A.2 guilty of the offence under Section 304 Part-II of I.P.C. i.e., culpable homicide not amounting to murder, as against the original charge under Section 302 of I.P.C. and accordingly, convicted and sentenced him as above. Aggrieved by the same, the unsuccessful A.2 filed the present Criminal Appeal challenging the judgment, dated 04.02.2009 in S.C.No.61 of 2007, on the file of Additional Sessions Judge, Hindupur.
9) Needless to point out here that as against the findings of the learned Additional Sessions Judge, Hindupur, no appeal is filed by the prosecution either against the acquittal of A.1 or as against the conviction of A.2 under Section 304 Part-II of I.P.C. as against the original charge under Section 302 r/w 34 of I.P.C. Under the circumstances, the scope of the appeal is confined to as to whether the evidence adduced by the prosecution would prove the offence of culpable homicide not amounting to murder as against the A.2/present appellant. 8
10) Hence, in deciding this Criminal Appeal, the points for consideration are as follows:
(1) Whether the prosecution before the Court below proved the offence under Section 304 Part-II of I.P.C. i.e., culpable homicide not amounting to murder against A.2 and whether it proved the said offence against A.2 beyond reasonable doubt?
(2) Whether there are any grounds to interfere with the judgment of conviction and sentence imposed against the appellant before the Court below?
POINTS:-
11) Sri P. Narahari Babu, the learned counsel for the appellant, would contend that P.W.1 and P.W.2 are no other than wife and son of the deceased, as such, they are interested in the case of the prosecution and they supported the case of the prosecution falsely. P.W.3, a crucial witness, did not support the case of the prosecution. The learned Additional Sessions Judge erroneously made an observation that the evidence of P.W.6, the medical officer, corroborated with the testimony of P.W.1 and P.W.2. The police recorded the statement under Ex.P.9 when the deceased was in the hospital and the evidence of P.W.1 and P.W.2 goes contra to the contents of Ex.P.9. Their evidence has no support from the medical evidence with regard to the fit state of mind of the deceased at the time of giving 9 statement under Ex.P.9. Ex.P.9 is suspicious document which was brought into picture when the deceased was in unconscious state. Apart from this, according to the postmortem report, injury No.4 was of fracture of ribs. Ex.P.6, wound certificate of the deceased, reveals that the injuries were said to be due to accident. According to P.W.11 in cross examination, such injuries could be caused by accident. The defence of the accused before the Court below is that the deceased received injuries in a road accident. The Court below did not appreciate the evidence on record properly and made erroneous findings that the evidence of P.W.7 corroborated with the evidence of P.W.1.
The learned Additional Sessions Judge did not look into the evidence of P.W.1 in proper perspective. He would further contend that in fact on account of the act of the son of P.W.1 i.e., P.W.2 in attacking the daughter of A.2, daughter of A.2 lost her fifth month pregnancy and anticipating a case from A.1 and A.2, they are implicated falsely in this case. In fact, Ex.P.9 was not recorded on its purported date. All these circumstances are overlooked by the learned Additional Sessions Judge. The learned Additional Sessions Judge sustained conviction with erroneous reasons basing on the interested testimony of P.W.1 and P.W.2 by disbelieving the theory of the defence that the deceased received injuries in the motor vehicle accident. 10
12) With the above said submissions, the learned counsel for the appellant contended that the appellant is liable to be acquitted. Learned counsel for the appellant during the arguments would contend further that if for any reason in the event of dismissal of the appeal, the Court may reduce the term of imprisonment because now the appellant is aged about 60 years.
13) Sri Y. Jagadeeswara Rao, learned counsel, representing the learned Public Prosecutor, would contend that though the evidence of P.W.1 and P.W.2 is interested in nature, but, it is trustworthy. Though P.W.3 did not support the case of the prosecution, but P.W.3 deposed that he found A.1 and A.2 attacking the deceased and by then electricity was lost and after the electricity was restored, he could found the injured lying with injuries. So, the evidence of P.W.3 is useful to the case of the prosecution to certain extent. P.W.11 categorically explained that apart from the head injury and a minor scratch and other two injuries were on account of treatment given to the deceased. Apart from this, the fracture of ribs could also be possible by fall. The case of the prosecution is that when the accused attacked the deceased, he was pushed to ground. Hence, there was corroboration to the oral testimony of P.W.1 and P.W.2 even from the medical evidence. The Court below 11 disbelieved the theory of the defence with proper reasons. Hence, the judgment of the learned Additional Sessions Judge is fully convincing, as such, the Criminal Appeal is liable to be dismissed.
14) The case of the prosecution is that after the incident, the injured was shifted to Government Hospital, Kadiri and on 30.03.2006 L.W.12, the Asst. Sub-Inspector of Police of Kadiri Town Police Station, recorded the statement of injured and forwarded to L.W.12 on point of jurisdiction. It is the further case that after that the deceased was succumbed to the injuries, section of law was altered into Section 302 r/w 34 of IPC from Section 324 r/w 34 of I.P.C. Under the circumstances, Ex.P.9 statement was marked by the prosecution before the Court below through the examination of P.W.8, the then the Asst. Sub-Inspector of Police, Kadiri Town Police Station. Therefore, the basis for setting the criminal law into motion was Ex.P.9, statement, recorded by P.W.8 from the deceased while he was alive. The statement was recorded on 30.03.2006. The date of death of the deceased was on 05.04.2006 while undergoing treatment in Government General Hospital, Ananthapur. The case of the prosecution is that the deceased while he was alive was also shifted to Government General Hospital, Ananthapur 12 for treatment from the Government Hospital, Kadiri. So, P.W.1 is not the defacto-complainant.
15) Now, I would like to refer here the substance of the evidence available on the crucial aspects. Coming to the evidence of P.W.1, the wife of the deceased, she deposed that she knows A.1 and A.2. Chinnappa is her husband. Three years ago her husband died in Government General Hospital, Ananthapur. Her husband was admitted in the hospital due to head injury. Three years back at 8-00 p.m., a galata took place near the house of A.1. The galata took place between her and A.1. On that day at 4-30 p.m., her son Anil Kumar went to the bore for water. At that time, there was altercation between Varalakshmi, the daughter of accused and her so in connection with collection of water. Her son came and informed the incident to her. She told to her son that the matter would be intimated to her husband after his arrival. Her husband returned from Amadagur. At 6-00 p.m., she intimated the incident to him who replied as to why they should interfere with the dispute of children. Then, he went to the house of Shankar Reddy. A.1 was abusing them at that time. Then she and her son Anil Kumar went to the house of A.1. By then A.1, A.2 and their daughter Varalakshmi and one Muneppa were present there. She told to A.1 not to abuse for the disputes of children and also 13 informed him that she chastised her son. In spite of it, A.1 was abusing her in filthy language. Then the husband of P.W.1 came to the place of galatga. He advised her (P.W.1) and A.1 not enter into altercation for the disputes of the children. Even A.1 abused her husband and caught hold of his tuft of hair and fell him down. Meanwhile, A.2 beat her husband on the head with Thoniki Katti (Muliki) and pushed him down. The Thoniki Katti stuck up in the head of her husband and her husband fell unconscious. One Ravi and Sivaiah came there and removed the Muliki from the head of her husband. Her husband was attacked with paralysis stroke on the right hand and right leg. She, Shankar Reddy and others took her husband to Government Hospital, Kadiri. Police recorded the statement of her husband in Government Hospital, Kadiri. Two days thereafter, he was shifted to Government General Hospital, Ananthapur. On 8th day of receiving of injury, her husband died. She was informed that he died due to head injury. M.O.1 is the Thonika Katti with which accused beaten her husband.
16) P.W.2 is the son of P.W.1, who deposed that three years back, his father Chinnappaiah died in Government General Hospital, Ananthapur due to head injury. A.2 caused the injury to his father 8 days prior to his death at the house of the accused. In the evening day he (P.W.2) went to get bore water. 14 There was altercation between him and Varalakshmi who is the daughter of accused with regard to taking water. Varalakshmi beat him with hands. He returned to the house and informed the incident to his mother, who told to him that she would intimate the incident to his father after he came to the house. His father came to the house from Amadagur by 5-00 p.m. Then his mother informed his father about the altercation. His father advised her to keep quiet without provoking the children dispute. So saying his father went to the house of Siva Shankar Reddy. Then she, P.W.1 went to the house of accused. By then Varalakshmi and Muneppa were present. P.W.1 asked A.1 as to why Varalakshmi beat him. A.1 abused them saying that he (P.W.2) beat her daughter. Meanwhile, his father came there. His father asked him as to why the elders will quarrel for the disputes of the children. A.1 caught hold of the hair of his father and beat him. A.2 beat his father with Thoniki Katti on his head and Thoniki Katti stuck to the head of his father. A.2 also kicked his father and his father fell down on a stone. Ravi, Sivappa and Muneppa witnessed the incident. Ravi and Sivappa removed the Thoniki Katti from the head of his father. They shifted his father to Government Hospital, Kadiri in a Jeep. His father was there for three days and later, he was taken to Government General Hospital, Ananthapur where he died while 15 undergoing treatment. Doctor informed them that his father died due to injury inflicted with Thoniki Katti.
17) P.W.3 deposed that the deceased died about three years back. At 8-00 p.m., on one day there was a galata between the accused and P.W.1 at the house of accused in connection with altercation between children at the bore. At that time he was at the house of accused. The accused, P.W.1 and her husband were dragging the hair of the deceased. At that time there was power cut and he does not know what was happened later. He saw the deceased lying with injury with Munigekatte. He does not know what was happened subsequently. The prosecution cross examined for not supporting the case of the prosecution fully and during cross examination, he denied that he stated before police as in Ex.P.1 and that he is deposing false.
18) P.W.4 and P.W.5 did not support the case of the prosecution. According to them, they do not know how the deceased died. During cross examination by the learned Additional Public Prosecutor, they denied that they stated before police as in Ex.P.2 and Ex.P.3 (Section 161 of Cr.P.C. statements of P.W.3 and P.W.4 respectively).
19) P.W.6 deposed that the deceased was working under him as a Tractor driver. On the date of incident at 6-30 p.m., 16 the deceased came to him. On hearing that there was galata, he went there without informing him. While he (P.W.6) was taking meal, P.W.1 and sister came to him and informed that the deceased Chinnappaiah received head injuries. P.W.4 and P.W.5 brought Chinnappaiah to his house by carrying him. By that time, the leg and hand of Chinnappaiah were affected with paralysis stroke. He got the Jeep from Amadagur for rent. They took Chinnappaiah in a Jeep to the Government Hospital, Kadiri. He was there as in-patient for two days. On the third day, he was shifted to Government General Hospital, Ananthapur. Eight days after the injury he received, a phone call received that Chinnappaiah died. He was present at the time of inquest over the dead body of deceased. The panchayathdars concluded that on account of injuries to the brain, Chinnappaiah died. Ex.P.4 is the inquest report. He attested Ex.P.4. He was also present at the time of observation of the scene of offence along with Narasimhulu at request of police. By that time, accused were absconding. Police observed the scene of offence and prepared scene observation mahazar. The daughter of accused Nagamani handed over M.O.1 to the police. He attested Ex.P.5 scene observation report.
20) P.W.7 is the medical officer, who treated the injured and issued wound certificate.
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21) P.W.8 is the Asst. Sub-Inspector of Police, who recorded the statement from the injured.
22) P.W.9 is the Sub-Inspector of Police, who registered the F.I.R. and conducted investigation.
23) P.W.10 is the Inspector of Police, who continued the investigation.
24) P.W.11 is the medical officer, who conducted autopsy over the dead body of the deceased.
25) The prosecution projected P.W.1, the wife of the deceased and P.W.2, the son of the deceased, as direct witnesses to the occurrence. The scene of offence was said to be at the house of the accused. Now, this Court has to see as to whether the testimony of P.W.1 and P.W.2 is believable and is inspiring confidence. Simply because they are interested witnesses, their evidence cannot be disbelieved.
26) The place of offence was at the house of the accused. Accused got probing cross examination of P.W.1 and P.W.2. The effort made by the accused during the cross examination of P.W.1 and P.W.2 as to whether they know the Jeep number in which the injured was carried to the hospital, etc., deserves no merits. There is no dispute about the fact that after receipt of injury by the deceased, he was shifted to Government Hospital, Kadiri and after two or three days, he was 18 shifted to Government General Hospital, Ananthapur. So, the mode of transport to the hospital is not criteria, as such, I do not find any merit in the effort made by the accused in that regard during the cross examination of P.W.1 and P.W.2.
27) During the cross examination, P.W.1 deposed that the galata took place between Varalakshmi, the daughter of the accused and her son. She denied a suggestion that in that galata, her son caught tuft of Varalakshmi and beat her. She deposed that on the date of incident, Varalakshmi carried fifth month pregnancy. She denied a suggestion that because her son beat Varalakshmi, her pregnancy was aborted. She denied that they held panchayat in the village apprehending that the accused would file case against them for abortion of Varalakshmi. She denied that she and her son did not go to the house of the accused at 8-00 p.m., and that they did not ask A.1 as to why she was abusing for the dispute of the children. At the time of galata between her son and Varalakshmi, her husband was not in the village and he went to Amadagur on the tractor of Shankar Reddy as a driver. She denied that her husband was coming in a tractor by 10-00 p.m. and that accident took place and that her husband fell down and that he received head injury. She denied that apprehending that the accused would give report against her son on account of 19 abortion of Varalakshmi, the case is foisted against the accused. She denied that her husband received injuries in the accident in which the accused had no connection and taking advantage of the injury to her husband, she filed false case.
28) During the course of cross examination of P.W.2, he denied that his father fell down in a tractor accident and that he is deposing false that A.2 beat his father. He further denied that he stated before police as in Ex.D.1. P.W.10, the Inspector of Police, deposed that P.W.2 stated before him as in Ex.D.1. In my considered view, Ex.D.1 is of no use to the case of the defence because it is pertaining to the so-called altercation between P.W.2 and the daughter of the accused and according to it, literally both P.W.2 and daughter of the accused beat with each other. It has nothing to do with the actual offence in question. Therefore, it is of no use to the case of the accused.
29) It is to be noticed that the case of the prosecution is that when the son of P.W.1 was sent to catch bore water, there was a quarrel between the daughter of the accused and P.W.2 and P.W.2 complained to P.W.1 and P.W.1 intimated to P.W.2 that after return of her husband, the matter will be intimated to him and when the deceased returned back in the evening, she revealed the incident to deceased, who advised her not to give importance to the children issue. The so-called incident as 20 regards the quarrel between daughter of the accused and P.W.2 was prior to the offence in question. The alleged incident as regards the charge was at the house of the accused. According to the evidence of P.W.1 and P.W.2, the offence took place at the house of the accused when P.W.1 and P.W.2 went there to question the act of daughter of the accused in attacking P.W.2. As regards the place of occurrence, there is evidence of P.W.3. The evidence of P.W.3 is that there was a galata about three years back at 8-00 p.m., between the accused and P.W.1 at the house of the accused in connection with the altercation between the children at the bore. Though he did not support the case of the prosecution to some extent, the extent to which he supported the case of the prosecution can be considered. Here P.W.3 testified the place of occurrence as at the house of the accused and he further testified that he found the deceased lying with head injury with Munigekatti. Absolutely, P.W.3 had no reason to depose false with regard to the place of occurrence as at the house of the accused and further the receipt of injury by the deceased. Therefore, the evidence of P.W.3 to that extent corroborates the evidence of P.W.1 and P.W.2.
30) The defence of the accused before the Court below is that the deceased received injuries in a motor vehicle accident and taking advantage of the same, P.W.1 filed a false case and 21 that in fact P.W.2 attacked the daughter of the accused and caused abortion when she was carrying fifth month pregnancy. P.W.1 and P.W.2 denied the above said defence of the accused. It is to be noticed that the alleged act attributed against P.W.2 as if he attacked the daughter of the accused and caused abortion of fifth month pregnancy, if true would amounts serious offence. The causing abortion to a woman when she was carrying fifth month pregnancy, definitely, involved some medico legal aspect. Apart from that causing abortion by using criminal force would also cause some injury to the daughter of the accused. If that is the situation, there is no clue from the defence of the accused as to whether the daughter of the accused received any injury and as to whether she was referred to hospital for getting proper treatment after abortion and as to why accused did not venture to bring the said fact to the notice of the police. Therefore, the defence of the accused in this regard is not that of a man of reasonable prudence. Except bald suggestion which was denied by P.W.1 and P.W.2, accused did not probabalize this theory of defence in any way for alleged false implication.
31) According to the evidence of P.W.7, the medical officer, on 30.03.2006 at about 12-45 a.m., he examined D. Chennappa (deceased) and found a puncture wound measuring 22 1 x 1 c.m. into skin depth over the left partial area. He took X- ray of skull AP and lateral view at 9-15 a.m. on the same day. He noticed fracture of the left partial bone with internal hemorrhage. The injury is grievous in nature. Ex.P.6 is the wound certificate. The injury can be caused with a sharp edged weapon. During the cross examination, he deposed that after receiving information from the wife of the accused, he prepared Ex.P.6. A person with injury noted in Ex.P.6 can speak and he is fully conscious. He can understand what is going on his surroundings. As per the information received from the injury, the injury was caused accidentally. Punctured injury and stab injury is one and the same. M.O.1 is four edged with a point. According to the medical jurisprudence test book by K.S. Narayana Reddy, a pointed square weapon may produce a cross shaped injury each of the four edges. During re-examination, he clarified that M.O.1, the edge of weapon, is pointed in shape about 0.5 c.m. and it is only sharp and not with four edges. During cross examination on behalf of the accused, he deposed that the injury in Ex.P.6 is superficial.
32) In the light of the clarification made by P.W.7 in M.O.1 up to 1.5 c.m. from the point side it is only sharp and it is not with four edges. So, insofar as the injuries received by the 23 deceased on his head are concerned, it is supported by P.W.7 couple with Ex.P.6.
33) Admittedly, it is a case where there is whisper in Ex.P.6 as if the injury was caused accidentally. It is to be noticed that P.W.7 being the medical officer ought to have taken proper care to ascertain as to the manner in which the deceased received head injury. Even according to him, the deceased was conscious at the time of admission into the hospital. Apart from this, the case of the prosecution is that P.W.9 recorded Ex.P.9 statement from the injured in the presence of P.W.7 when the deceased was brought to the hospital in a conscious state, who was capable of giving a statement. The act of P.W.7 in getting information from P.W.1 as to how the deceased received injury is not at all proper. There is a lot of difference between the words "the injuries received in accident" and "the injury was caused accidentally". On account of the fact that P.W.7 did not write properly in Ex.P.6 as to how the deceased received injuries, the accused wanted to take an advantage. In fact, P.W.1 was not at all cross examined as to whether she intimated to P.W.7, the medical officer, that the deceased received injury accidentally. It is a case where according to the case of the prosecution, P.W.9 recorded the statement of the injured under Ex.P.9, which is in tune with the evidence adduced through the 24 examination of P.W.1 and P.W.2. Under the circumstances, it is unsafe to believe the defence theory basing on a vague whisper in Ex.P.6 that the injury was caused accidentally.
34) Apart from that, even the defence of the accused is that the evidence of P.W.11 coupled with Ex.P.18, postmortem report, reveals that injury No.4 is 4th and 5th ribs fractured and according to P.W.11 it could also be possible by fall or in the vehicle accident. Therefore, the effort made by the accused is that as there was fracture of ribs, there was a probability to receive such injuries in a vehicle accident.
35) Admittedly, the evidence of P.W.11 means that he found external injuries of abrasion of 3 x 2 c.m. on the left temporal region covered with black scab a corrugated rubber drain in a surgical wound of 1 ½ x ½ c.m. on right side of front of lower abdomen, a borehole of 1 c.m. diameter on left partial bone and there were 4th and 5th ribs fractures at their anterior angles. During cross examination, he deposed that injury No.2 and injury No.3 are the surgical injuries caused during the course of treatment. Injury No.3 was caused while admitting the patient into the hospital to remove the blood clots from the cranial cavity. Injury No.2 was possible as a part of treatment to remove pus from the abdominal cavity. He deposed that the fracture of ribs i.e., injury No.4 could be possible by fall or in the 25 vehicle accident. It is basing on these answers and on account of the presence of 4th and 5th ribs fractures the accused canvassed the contention that the deceased received injuries in a road accident.
36) It is to be noticed that P.W.1 and P.W.2 and even P.W.3 were not supposed to speak about the internal injuries received by the deceased. The evidence of P.W.1 is very clear that in the attack, the deceased was pushed to down and further after the deceased was attacked with Thoniki Katti, he fell unconscious. Apart from this, there was also allegation that the deceased was fallen to ground. Even according to the evidence of P.W.2, A.2 also kicked his father and his father fell down on a stone. Even according to the answers elicited through the cross examination of P.W.11, injury No.4 could be possible by fall. Here there is ocular testimony that the deceased was pushed down to ground during the course of attack. When this is the situation, there was every possibility that the deceased received 4th and 5th ribs fractures when he was pushed down to ground. Even according to the evidence of P.W.11 such injury can be possible even by pressing with hands on the chest. Therefore, the very evidence of P.W.1 and P.W.2 and the answers elicited from the cross examination of P.W.11 itself explains that there is every possibility for receipt of 4th and 5th ribs fractures when the 26 deceased was pushed to down during the course of attack. By any stretch of imagination, it cannot be held that the deceased received injuries in the vehicular accident.
37) P.W.6 was no other than the person under whom the deceased was working as a driver. He categorically testified that on hearing about the galata between his family members and the accused, he rushed to the spot from the house of P.W.6. Nothing is suggested to P.W.6 that the deceased received injuries in a vehicular accident. P.W.6 was the proper person to say as to whether his vehicle involved in any accident. It is only basing on a vague whisper made by P.W.7 without any basis in Ex.P.6, accused wanted to take an advantage.
38) Having regard to the overall facts and circumstances, the theory of the defence that the deceased received injuries in a vehicular accident cannot stand to any reason. The evidence of P.W.1, P.W.2 and P.W.3 has corroboration from the evidence of P.W.7, medical officer, coupled with Ex.P.6. The cause of death is clear from the evidence of P.W.11 coupled with Ex.P.18 to the effect that the deceased died due to head injury associated with peritonitis. It is a case where the weapon of offence used by A.2 was stuck up in the head of the deceased for a considerable period of time. 27
39) The evidence of P.W.8, the Asst. Sub-Inspector of Police, Kadiri Town Police Station is that on 30.03.2006 he received medical intimation under Ex.P.8 and then he went to Government Hospital, Kadiri, consulted the duty doctor and enquired about the injured person Chinnappaiah. He recorded the statement of injured in the presence of duty doctor after confirming about the mental status. He endorsed to that effect on the statement. Ex.P.9 is the statement. Ex.P.7 is the endorsement of the duty doctor on Ex.P.9. Later, he transmitted Ex.P.8 and Ex.P.9 to Amadagur Police Station. Nothing is elicited in the cross examination to disbelieve his testimony. He deposed that he scribed Ex.P.9 in his own hand writing. Some persons including the wife of the deceased were present at the time of recording Ex.P.9. He denied that Ex.P.9 is not the statement of the deceased and it is created. It is very difficult to uphold the contention of the accused in this regard. There is no dispute that P.W.9 having received Ex.P.9 registered the F.I.R. and took up investigation. Ex.P.9 was recorded on 30.03.2006. P.W.9 deposed that he received Ex.P.8 and Ex.P.9 on 02.04.2006 at 7-00 a.m., and registered F.I.R. and took up investigation. Therefore, according to P.W.9, he received Ex.P.8 and Ex.P.9 along with the memo, dated 30.03.2006 and it goes to show that Ex.P.9 was recorded on 30.03.2006. In fact, the 28 endorsement made by P.W.7 on Ex.P.7 discloses that statement was recorded on 30.03.2006 in the presence of medical officer. The evidence of P.W.7 is not at all impeached in this regard. So, there are no suspicious circumstances to doubt the manner in which Ex.P.9 was recorded by P.W.8 which was the basis for setting the criminal law in motion. Hence, Ex.P.9 literally runs as to the circumstances in which the deceased received injuries in the hands of the accused. Undoubtedly, it can be taken as dying declaration. The Court below placed reliance on Ex.P.9 to treat it as a dying declaration. Though the deceased died on 06.04.2006 i.e., 8 days of the incident, it cannot be held that the death of the deceased has nothing to do with the attack made by the accused.
40) Having regard to the above, this Court is of the considered view that Ex.P.9 can be taken as dying declaration which reveals that A.2 attacked the deceased with M.O.1 and caused severe head injury. If really the deceased received injuries in a motor vehicle accident, those things would have been found place in Ex.P.9. On 30.03.2006 itself Ex.P.9 was recorded. Hence, the contention of the accused that anticipating that accused would file a case for causing abortion to his daughter by P.W.2, P.W.1 filed false case cannot stand to any reason.
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41) In the light of the above, this Court is of the considered view that the prosecution has categorically proved beyond reasonable doubt that A.2 made an attack on the head of the deceased with a dangerous weapon and caused severe bleeding injury and the cause of death is nothing but act of the accused. The Court below with proper reasons held that A.2 had no intention to kill the deceased but A.2 had knowledge that the injury caused to the injured is likely to cause his death. As pointed out, there is no appeal challenging the judgment of the Court below by the prosecution.
42) Having regard to the above, this Court is of the considered view that the evidence adduced by the prosecution is fully convincing and it proves beyond reasonable doubt that A.2 caused the death of the deceased by his act which is an act of culpable homicide not amounting to murder. Hence, I do not see any reason to interfere with the judgment of the learned Additional Sessions Judge, Hindupur, dated 04.02.2009.
43) Turning to the contention of the learned appellant that in the event of dismissal of the Criminal Appeal, the Court may reduce the sentence of imprisonment, this Court would like to make it clear that as on the date of offence, the accused was aged about 40 years. The incident was happened on 29.03.2006. Now, he must have been in the age group of 30 around 57 years. The Court below sentenced him to suffer rigorous imprisonment for 7 years. Under the circumstances, I do not see any reason to reduce the sentence of imprisonment imposed against the appellant.
44) In the result, the Criminal Appeal is dismissed.
45) The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the order of this Court to the trial Court on or before 27.04.2023 and on such certification, the trial Court shall take necessary steps to carry out the sentence imposed against the appellant and to report compliance to this Court.
Consequently, miscellaneous applications pending, if any, shall stand closed.
________________________ JUSTICE A.V. RAVINDRA BABU Dt. 20.04.2023.
PGR 31 THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU CRL. APPEAL NO.130 OF 2009 Registry to circulate a copy of this judgment to the Court below on or before 27.04.2023.
Date: 20.04.2023 PGR