Andhra Pradesh High Court - Amravati
Bade Pinaka Babu vs The State Of Ap., Rep By Its P.P on 20 January, 2020
Author: C. Praveen Kumar
Bench: C. Praveen Kumar, Battu Devanand
HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
&
HON'BLE SRI JUSTICE BATTU DEVANAND
Crl.A. No. 32 of 2014
JUDGMENT:- (per Hon'ble Sri Justice C. Praveen Kumar) The sole accused in S.C.No. 197 of 2012 on the file of the Court of the learned XI Additional District and Sessions Judge, Tenali, is the appellant herein. He was tried for the offences punishable under Sections 498-A, 302, 307, 324 and 506 IPC. The learned Sessions Judge, vide judgment dated 13.12.2013, while acquitting the accused for the offences punishable under Sections 498-A, 324 and 506 IPC, convicted him for the offence punishable under Section 302 IPC and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs.1,000/-, in default, to suffer imprisonment for three months. He was also found guilty for the offence punishable under Section 307 IPC and was sentenced to suffer rigorous imprisonment for a period of ten years and also to pay a fine of Rs.1,000/-, in default, to suffer rigorous imprisonment for a period of three months. The substantive sentences were directed to run concurrently.
The gravamen of the charge against the accused is that on 28.10.2011 at about 06:30 p.m. at the house of the deceased - Maddiramaiah, the accused killed the deceased by causing an injury on his neck. In the process, he is said to have caused an injury to PW2.
2 CPK,J & DEV,J Crl.A_32 of 2014 The facts, as culled out from the evidence of the prosecution witnesses, are as follows:
PW2 is the wife of the deceased and injured witness. PW3 is the wife of the accused and daughter of the deceased. PW1 is a relative of the deceased while PW4 is a neighbour. PW5 is the son of the deceased. It is stated that the marriage of the accused with the daughter of the deceased took place one year prior to the date of the incident. At the time of the marriage, cash of Rs.5.00 lakhs and half acre of land were given to the accused as dowry. Both of them lived happily for sometime. After the daughter of the deceased became pregnant, disputes arose between the accused and the deceased since the accused started demanding the deceased to pay some money for purchasing taxi. The deceased is said to have informed the accused that he would sell the land and give him the money. On one occasion, the deceased is said to have paid Rs.10,000/- to the accused and on another occasion he gave Rs.20,000/- and also a sum of Rs.50,000/- for purchasing motorcycle and brought his daughter to his house for delivery. After delivery (cesarean delivery), the accused was coming to his in-laws' house to see his child. When the child was aged about three months, the accused came to the house in the mid-night and wanted to sleep with his wife. The inmates of the house told him that since the daughter of the deceased (PW3) underwent major surgery, it may not be proper for him to
3 CPK,J & DEV,J Crl.A_32 of 2014 sleep with her. Ten days thereafter, the accused again came to the house at 06:30 p.m. and wanted to take away his wife to his house. When PW2 and others told him that he cannot take his wife in the fifth month of the delivery, he abused the deceased saying that he would take away his wife then itself, took out a chaku (small knife) from his pocket and hacked the deceased. At that point of time, PW2 is said to have rushed to the deceased, and on seeing that the accused assaulted the deceased on the left side of the neck with chaku and also assaulted PW2 on the right side of the neck. Both of them fell down. PW1, who heard the cries, rushed there, and on seeing him, the accused left the house threatening him with dire consequences. The people, who gathered at the house, raised cries. While the deceased was being shifted to hospital at Repalle in an auto for treatment, he died on the way. Immediately, PW2 was also shifted to a Hospital at Repalle in Ambulance. After the dead body of the deceased was brought to the house, PW1 is said to have lodged a report to the police at Adavuladeevi Police Station, basing on which, Crime No.44 of 2011 was registered against the accused for the offences punishable under Sections 302, 307 and 498-A IPC. Ex.P1 is the report and Ex.P12 is the F.I.R. PW12 - Inspector of Police visited the Hospital at Repalle and came to know that the injured was shifted to Government Hospital at Guntur where PW8, the Doctor treated her at 07:00 p.m. and issued Ex.P4 - wound 4 CPK,J & DEV,J Crl.A_32 of 2014 certificate. As it was night, he posted a guard and visited the scene of offence on the next day i.e. 29.10.2011. In the presence of PW7 and others, he examined the scene of offence and found the dead body of the deceased lying on the ground. He seized blood-stained earth and controlled earth under Ex.P3 - observation report. MO4 is the blood- stained earth and MO5 is the controlled earth. He also took photographs of the scene of offence which are placed on record as Exs.P7 and P8. Ex.P13 is the rough sketch of the scene of offence prepared by him. In the presence of mediators and PW7, he conducted inquest over the dead body. Ex.P2 is the inquest report. During the inquest, he examined PWs.1, 3, 4, 5 and 6 and recorded their statements. After completing the inquest proceedings, he sent the dead body to the Government hospital for post-mortem examination. PW9, Civil Assistant Surgeon, Community Health Centre, Repalle conducted post-mortem examination over the dead body of the deceased on 29.10.2011 at 11:00 a.m. and issued Ex.P6 - post-mortem certificate. According to her, there was only one injury on the neck and the death was due to cut on left jugular vein. After sending the body for post-mortem examination, PW12 again left to Government General Hospital, Guntur where PW2 was undergoing treatment and recorded her statement. He seized blood-stained clothes of PW2 under Ex.P9 - mediators report. On 02.11.2011, on the basis of the 5 CPK,J & DEV,J Crl.A_32 of 2014 information received, he arrested the accused, and pursuant to a statement made by him, the weapon alleged to have been used in the commission of offence, was recovered under Ex.P11. After completing the investigation, he filed charge sheet which was taken on file as P.R.C. No.8 of 2012 on the file of the Court of the learned Judicial Magistrate of First Class, Repalle. The documents as required under Section 207 Cr.P.C., were furnished to the accused and since the case is exclusively triable by the Court of Sessions, the same was committed to the Court of Sessions, Guntur. On appearance of the accused, charges as stated above came to be framed against him, read over and explained to him in Telugu, to which, he pleaded not guilty and claimed to be tried.
To substantiate its case, the prosecution examined PWs. 1 to 12 and got marked Exs.P1 to P14 and M.Os.1 to 11.
After the closure 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 the prosecution witnesses, to which, he denied, however he did not adduce any oral evidence except getting marked relevant portions of the statements of prosecution witnesses recorded by the police under Section 161 Cr.P.C., as Exs.D1 to D4.
Relying upon the evidence of PW2 coupled with the evidence of PWs.1, 3 and 4, the learned Sessions Judge 6 CPK,J & DEV,J Crl.A_32 of 2014 convicted and sentenced the accused as mentioned above. Challenging the same, the present appeal is filed.
Though various grounds are urged, Sri Challa Srinivasa Reddy, learned counsel for the appellant, would mainly contend that even accepting the entire case to be true no offence under Section 302 IPC is made out. According to him, the incident in question was preceded by a quarrel between the accused and the deceased, as a result of which, the accused caused an injury to the deceased, and in the process, when PW2 intervened, he also inflicted an injury on her. He pleads that if the evidence of the witnesses are read as a whole, it would indicate that the accused wanted to take his wife to his house, but the same was not allowed by the inmates of the house. Except this, the evidence, nowhere indicates any other incident or dispute between the accused and the family of the deceased.
On the other hand, the learned Public Prosecutor appearing for the respondent-State, would contend that since the accused was carrying a weapon in his pocket, it has to be inferred that he came there only with an intention to cause death of the deceased. According to him, no evidence has been adduced nor any suggestion was given to any of the witnesses to say as to why he was carrying the weapon on that day. In view of the above, he would contend that the accused came there only with an intention to cause the death of the deceased, as such, the trial Court rightly 7 CPK,J & DEV,J Crl.A_32 of 2014 convicted the accused for the offence punishable under Section 302 IPC.
Now, the point that arises for consideration is whether the prosecution has proved its case that the accused committed the offences punishable under Sections 302 and 307 IPC beyond reasonable doubt?
As stated earlier, the learned counsel for the appellant fairly stated that the incident in question did take place but the accused never had any intention to cause the death of the deceased. In other words, his argument is that the alleged incident is an outcome of the quarrel took place in the house of the deceased. In order to appreciate his contention, it would be apt to refer to the evidence of the witnesses particularly PWs.1 to 4 and their admissions in the cross-examination.
PW1, who is cousin of the deceased, came to the scene of the offence after hearing the quarrel. He speaks about the demands made by the accused and that the demands alleged to have been made by the accused being fulfilled. According to him, an amount of Rs.50,000/- was paid for purchase of motorcycle. His evidence is to the effect that on the date of the incident at about 06:30 p.m., while he was going to engage a coolie for the purpose of spraying pesticide in his land, he heard galata from the house of the deceased, and on hearing the same, he went there and noticed the accused demanding the deceased to give money by selling 8 CPK,J & DEV,J Crl.A_32 of 2014 the land, then the accused took out chaku and caused injury on the left side of the neck of the deceased and also caused injury on the right side of the neck of PW2 and when people gathered there and raised cries, the accused absconded. But this evidence in chief appears to be different from what PWs.2 and 3 stated, however in the cross-examination, PW1 admits that by the time, he reached the house, quarrel was going on between the accused and the deceased and PW2 was asking the deceased not to have any quarrel. To a question as to whether both the accused and the deceased had physical altercation with each other, he answered in a positive way. PW1 also admits that they were quarreling for about 2 or 3 minutes prior to his arrival. It would be useful to extract the relevant portion in the evidence of PW1 which is as under:
"There was nobody else except Seetha Mahalakshmi. By the time I reached there, there was a quarrel going on between the deceased and the accused. Sethamahalakshmi was asking the deceased not to have a quarrel.
Q. Whether both the deceased and the accused has a physical altercation with each other?
Ans. Yes.
The witness again says that the deceased was simply standing.
They were quarreling since about 2 or 3 minutes prior to my arrival."
From the evidence of this witness, it is evident that even before his arrival at the house of the deceased, there was a quarrel between the accused and the deceased and a 9 CPK,J & DEV,J Crl.A_32 of 2014 physical altercation was going on between both of them while PW2 was pacifying the deceased not to have a quarrel.
PW2 - Lankoji Seetha Mahalakshmi, who is an injured eye-witness, deposed that on the date of the incident at about 06:30 p.m., the accused came to their house and wanted to take away her daughter. They told him that he cannot take his wife in the 5th month as she underwent cesarean operation, then the accused abused the deceased saying that he would take away his wife then itself, took out a knife and hacked the deceased. When PW2 rushed to the deceased at that point of time, the accused assaulted the deceased on the left side of the neck and also assaulted PW2 with the same weapon on the right side of her neck, as a result of which, both fell down. If we compare the evidence of PWs.1 and 2, it is evident that the manner in which the incident took place varies. In the evidence of PW1, there is no reference to any demand for money by the accused. The evidence of PW2, wife of the deceased, discloses that the quarrel was with regard to the accused who intended to take his wife to his house. In her cross-examination, it has been elicited that while the deceased and the accused were quarrelling, herself and the deceased were assaulted with chaku. It was further elicited that the chaku was a small weapon while knife was bigger than chaku. The relevant portion in the evidence of PW2 is as under:
10 CPK,J & DEV,J Crl.A_32 of 2014 "I do not know whether the deceased consumed liquor at the time of the incident. It is true that the deceased and accused were quarrelling. Myself and the deceased were assaulted with the same weapon. I did not observe whether that knife had sharpness on both sides. I know chaku and kathi. Chaku is a small weapon. Kathi is a bigger weapon than chaku." PW3, who is the wife of the accused, was examined as an eye-witness to the incident. In her evidence she states that on the date of the incident at about 06:30 p.m., the accused came to the house, picked up a quarrel with her father, took out chaku from his pocket and caused a cut injury on her father and when her mother intervened, he caused a cut injury on her. When PW1 came there and intervened, the accused threatened to stab him with chaku. Though her evidence is silent about the manner and the purpose for which the incident in question took place, but it is evident that there was a quarrel between the accused and the deceased, wherein, he took out chaku from his pocket and caused injury. In the cross-examination, she admits that it was dark at the time of the incident and there was a quarrel between the accused and the deceased. She also admits that the weapon i.e. chaku is different from knife.
Coming to the evidence of PW4, it is in line with the evidence of PW3. Though he does not speak about the actual attack, his evidence is to the effect that while he was in his house situated opposite to the house of the deceased, he heard cries of PW1 and others saying that the deceased has 11 CPK,J & DEV,J Crl.A_32 of 2014 been stabbed. He went there and found PW2 and the deceased with bleeding injuries. From the evidence of these four witnesses, which is relied upon by the prosecution, it is apparent that the accused committed murder of the deceased. It is evident that all the witnesses in one voice say that there was a quarrel between the accused and the deceased. Though the version of PW1 with regard to the circumstances leading to the quarrel is not corroborated by the evidence of PWs.2 and 3, but the contents of F.I.R. and the evidence of PWs.2 and 3 amply establish that the accused, who is the son-in-law of the deceased, came to the house of the deceased at 06:30 p.m. and wanted to take away his wife - PW3 (daughter of the deceased) to his house. The evidence on record also establish that couple of days earlier, he also came to the house and wanted to sleep with his wife which was not allowed by the family members on the ground that PW3 underwent cesarean operation.
From the above, it is evident that a quarrel took place between the inmates of the house not with regard to any property or something as alleged by the prosecution, but only with regard to sending the daughter of the deceased (PW3) to the house of the accused after delivery. It is also to be found here that PW9, who conducted post-mortem examination, noticed only one injury on the neck. PW8, the Doctor, who examined the deceased on the very same day at 07:00 p.m., noticed a lacerated injury on the left side of the 12 CPK,J & DEV,J Crl.A_32 of 2014 neck with fresh bleeding. According to PW9, she noticed one red incised injury measuring 2 x ½ inches x 2 inches x 1½ inches obliquely extending from the left stern mastoid muscle to mandible and correspondingly left jugular vein and other structures are cut.
Therefore, from the evidence of PW9, it is clear that there was only one injury on the neck extending from stern mastoid muscle leading to left jugular vein being cut causing the death of the deceased. As stated earlier, there is only a blank argument of the learned counsel for the appellant that there was no intention on the part of the accused to cause the death of the deceased but there was a quarrel, and in course of which, the incident took place. As held earlier, the evidence of PWs.1 to 3 and the admissions in the evidence of PW1, amply establish that the incident in question was preceded by a quarrel and in the course of which, the accused is said to have beat the deceased with chaku, which is sharp-edged, only on one side, on the neck. Though the learned Public Prosecutor would contend that the accused gave a blow on the neck, that itself indicates his intention to cause death but it is difficult to believe that the accused gave that blow intentionally, as PW3, in her cross- examination, admits that it was dark at the time of the incident and there was physical quarrel going on between both of them, and when PW2 interfered to avoid any quarrel 13 CPK,J & DEV,J Crl.A_32 of 2014 between them, the blow must have been landed on the neck portion leading to rupture of jugular vein.
Having regard to the above, we feel that it is a case falling under Exception No.4 to Section 300 IPC, and accordingly, Section 302 IPC for which offence the accused is convicted, is altered to Section 304 Part-II IPC and he is sentenced to undergo rigorous imprisonment for a period of seven years.
Insofar as the conviction of the accused for the offence punishable under Section 307 IPC is concerned, it is very much evident that he never had any intention to cause either the death of PW2 or make an attempt to kill her but when she interfered in the quarrel, he gave a blow which also landed on the neck region. Hence, Section 307 IPC for which offence the accused is convicted, is altered to Section 326 IPC and he is sentenced to under rigorous imprisonment for five years. Both the sentences shall run concurrently.
Accordingly, the Criminal Appeal is partly allowed modifying the conviction and sentence imposed by the trial Court to the extent indicate above.
As a sequel, Miscellaneous Petitions, if any pending, shall stand disposed of as infructuous.
__________________ C. PRAVEEN KUMAR, J 20.01.2020 _________________ BATTU DEVANAND, J bcj