Andhra Pradesh High Court - Amravati
Somela Pothuraju, vs The State Of Ap Rep By Its Pp Hyd., on 31 December, 2019
Author: C.Praveen Kumar
Bench: C.Praveen Kumar
HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
Criminal Appeal No.330 of 2010
ORDER:
1. Aggrieved by the judgment dated 30.12.2009 passed in S.C.No.140 of 2008 on the file of the District & Sessions Judge at Visakhapatnam, the accused preferred the Appeal under Section 374(2) Cr.P.C. He was tried for the offence punishable under Sections 302 IPC. By its judgment, dated 30-12-2009, the learned Sessions Judge, acquitted the appellant - accused for the offence punishable under Section 302 I.P.C., but, however, found guilty of the offence punishable under Section 304 part-II I.P.C. and sentenced to suffer Rigorous Imprisonment for a period of seven years and to pay fine of Rs.500/-, in default, to suffer Rigorous Imprisonment for a period of six months.
2. The gravamen of the charge against the accused was that he, on 19.3.2008 at 21.00 hours at Addavariveedhi of Mampa Village in his house hacked his wife - Somela Radha, with kitchen knife (katti peeta) on her head, nape, neck and hands indiscriminately, on account of which, she died on 20.3.2008 at 5.00 AM.
3. The case of the prosecution, as seen from the evidence, is that deceased - Somela Radha is the wife of the accused - Somela Pothuraju. He married her about 13 years prior to 19.3.2008 and out of wedlock blessed with two children. The deceased and the accused stayed at Yeleswaram and thereafter shifted to Addaraveedhi, Mampa and living by doing labour work. The children were staying with grand parents at Yeleswaram. The 2 deceased, who was addicted to alcohol, was questioned and a panchayat was held, but the deceased did not change. On the night of 19.3.2008 at about 9.00 PM, the accused picked up a quarrel with the deceased for her conduct, and in that quarrel, the accused grew wild and picked up a kitchen knife and hacked her on the head and neck etc., and caused fatal injuries and left the place. P.W.2 and others, who are neighbours, did not go there. On 20.3.2008 at about 5.00 AM on coming to know about the incident, they lifted the deceased to the hospital and she died in the transit. The dead body was brought back and on the information, P.W.1, who is the VRO, came and enquired and sent a report, which was registered as a case in crime No.9 of 2008 for the offence punishable under Section 302 I.P.C. The investigation was taken over by C.I. of Police. A Panchanama of the scene was conducted and thereafter inquest was conducted over the dead body of the deceased. Then dead body was sent for post-mortem examination. P.W.6 - Doctor conducted the autopsy over the dead body of the deceased and found the following injuries:
"1. An incisional injury on the occipital area of the scalp with measurement 5" x 1" x 2" cm., on cut section scalp layers are congested, Fracture of the occipital bone. Brain congested on cut section. Clotted blood present on the occipital lobes of brain;
2. An incisional injury external on the left side neck with measurements of 3" x 1" x 3" cm on cut section injury of the left side steroid mastoid muscle, cut section-external artery, external jugular vein and major blood vessels;
3. An incisional injury external on the back of the neck measuring 2" x 1.2" cm., on cut section, internal structure are intact. An incisional injury on the back of the neck 3" x 1" x 1" cms., On cut section, internal structures are intact. An incisional injury on the back of the neck 2" x 1" x 2" cm, injury. On cut section, internal structures are intact.3
4. An incisional injury external on left side of the cheek measuring 2" x 1" x 2" cms., on cut section, internal structures are injured. An incisional injury on the left side of the cheek measuring 2" x 1 ½ x 2 cms., On cut section, internal structures.
5. An incisional injury external on the left side of the measuring 2"
x 1" x 2" cms. injury. On cut section, internal staires are injured. An incisional injury left on the chin 2" x 1 x 2" cms. On cut section internal structures are injured.
6. An incisional injury on the right palm between thumb and index finger on cut section- internal structures are injured.
7. An abrasion on left waist 3" x 2" cms. On cut section, internal structures are intact.
8. An incisional injuries with measurements 3" x 2" cms. Internal structures are intact.
9. An abrasion of right knee joint with measurements 3" x 2" cms., on cut section, internal structures are intact. An abrasion on left knee joint 3" x 2" cm. On cut section, internal structures are intact."
The Doctor opined that the cause of death was haemorrhage and shock due to injury to the vital organ viz., the brain and injury of major blood vessels like carotid artery and external jugular vein. He issued Ex.P6, post-mortem report. On 20.3.2008 at about 4.00 AM, the accused was arrested and gave a confessional statement, and the clothes of the accused are seized in pursuance of the confession, and the accused was sent for remand.
4. After collecting all the required documents and the material, a charge-sheet came to be filed, which was taken on file as P.R.C. No.25 of 2008 on the file of the Judicial First Class Magistrate, Chintapalli. On appearance of the accused, all the documents as required under Section 207 Cr.P.C. were furnished and later it was committed to the Court of Sessions under Section 209 Cr.P.C. On appearance of the accused, charge under Section 302 I.P.C. came 4 to be framed, read over and explained to the accused, to which he pleaded not guilty and claimed to be tried.
5. In support of its case, the prosecution examined P.Ws.1 to 9 and got marked Exs.P1 to P10 and M.Os.1 to 3. 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, did not adduce any defence evidence.
6. Appreciating the evidence adduced on the side of the prosecution, the learned Sessions Judge was of the view that due to conduct of the accused and his differences with the deceased and the frequent quarrels that have erupted, the accused is the author of the crime and none else. Accordingly, he found the accused guilty of the offence. However, the learned Judge was of the view that there was no intention on his part to kill the deceased. Hence, found him guilty of the offence punishable under Section 304 part-II of the Indian Penal Code. The conviction was followed and ultimately the accused was sentenced to suffer Rigorous Imprisonment for a period of seven years.
7. From the tenor of the cross-examination of the witnesses, it is quite clear that there are disputes between the accused and the deceased and the conduct of the deceased was found to be suspicious as per the evidence of P.W.2. The circumstances which can be conclusively said to have been proved are that the deceased and the accused alone were living in the house and in the evening prior to her death, the accused was found to be in the company of 5 the deceased. When the incident took place in a house, where the husband and the wife alone were living together, it is for the husband to explain as to how the incident could have been happened. The evidence of P.W.3 clearly goes to show that on that night, there was a quarrel in the house of the accused and it was felt that it was a quarrel between the accused and the deceased. His evidence assumes importance, though he has not seen the accused in the house at that time; the possibility of a third person coming to the house and having a quarrel is also remote, when the evidence of P.W.2 is taken into consideration to the effect that the accused was found in the house in that evening. If really the accused was not in the house on that night, there is no explanation as to where he has gone. For the above reasons, I have no hesitation to hold that the evidence of prosecution witnesses inspires the confidence of the Court and it can safely be relied upon.
8. The finding of the learned trial Court that there was no intention on the part of the accused to kill the deceased and therefore the offence of murder punishable under Section 302 was not attracted, instead it was a case of culpable homicide not amounting to murder punishable under part-II of Section 304 is on sound reasoning, having regard to the facts and circumstances of the case. Therefore, the conviction of the appellant under Section 304, part-II of the Indian Penal Code has to be confirmed.
9. As regards the sentence, having regard to the facts and circumstances of the case and in view of the above discussion, the sentence cannot be said, in any manner, to be disproportionate to 6 the gravity of the offence alleged and the manner in which the offence is perpetrated. Therefore, the sentence cannot be said to be excessive.
10. For the above reasons, the appeal fails and is dismissed.
Consequently, miscellaneous petitions pending, if any, shall stand closed.
_______________________ C.PRAVEEN KUMAR, J.
31st December, 2019.
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