THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.912 of 2008 12-08-2014 BETWEEN:
Chitikena Peda Subba Rao @ Peda Subbayya …..Appellant/A.1 AND State of A.P., Rep. by the Public Prosecutor, High Court of Judicature at Hyderabad for The State of Telangana and the State of A.P., …..Respondent THIS COURT MADE THE FOLLOWING JUDGMENT:
THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.912 of 2008 JUDGMENT:
This Criminal Appeal is preferred by the appellant/A.1 against the Judgment dated 16.07.2008 passed in S.C.No.138 of 2007 by the Court of V Additional Sessions Judge (Fast Track Court), East Godavari District, at Rajahmundry, whereby the learned Judge convicted the appellant/A.1 for the offence under Section 304 Part-I IPC and accordingly sentenced him to suffer rigorous imprisonment for a period of five years, and to pay a fine of Rs.100/- (Rupees one hundred only), in default, to suffer simple imprisonment for a period of fifteen days.
The case of the prosecution, as recorded by the Court below, is as follows:
That on 05.08.2006 at about 7.00 a.m., A.2 raised dispute with the deceased and her family members, P.Ws.1 to 3 and 5 alleging that they are responsible for the death of cocks followed by wordily altercation and mother, sister of the deceased manhandled A.2, while P.W.5 poured boiling tea over A.2 and crime is registered to that effect and after few minutes of the incident, A.2 along with A.1, A.3 and A.4 came upon the house of victim at about 7.30 a.m., when the deceased only was present in the house and A.1 to A.4 with an intention to wreck vengeance to see the end of their rival party attacked her family members and A.1 questioned the victim about the attack on A.2 and demanded to vacate the site and for which, the victim answered to contact her parents and meanwhile, A.2 pocked victim with stick on her abdomen while A.4 attacked her with hands and legs and A.3 uttered words against the victim by plucking out the Palmyrah leaves of the thatched house and then A.1 picked up kerosene tin, which was near the woven poured on person of the victim and set her ablaze and P.W.2 witnessed the incident and on hearing cries, neighbours gathered.
As the victim could not endure the burns rushed to the canal water located on southern side of the house and tried to put off flames.
P.W.1 shifted the injured to the hospital and crime in this case was registered and deceased in this case died while undergoing treatment. After the death of the deceased, Section of law was altered from 324 read with 34 IPC to 302 read with 334 IPC. The investigating officer in the presence of mediators, observed the scene of offence and held inquest over the dead body of the deceased and P.Ws.13 and 14 recorded the dying declaration of the deceased and P.W.8, Doctor, conducted Post Mortem Examination over the dead body of the deceased and P.W.17 arrested A.1 to A.4 and they confessed their guilt. Hence, the charge.
To prove the guilt of the accused, P.Ws.1 to 17 were examined and Exs.P.1 to P.15 and M.Os.1 and 2 were marked on behalf of the prosecution. No oral evidence was adduced on behalf of the accused, but marked Exs.D.1 to D.9.
On appreciation of oral and documentary evidence, the trial Court acquitted A.2 to A.4 for the offence under Section 302 IPC read with Section 34 IPC. The trial Court found the appellant/A.1 guilty for the offence under Section 304 Part I IPC, and accordingly sentenced him as stated above. Aggrieved by the same, the present appeal is preferred by the appellant/A.1.
Heard and perused the records.
A careful perusal of the evidence adduced on behalf of the prosecution clearly reveals that some of the material facts are suppressed by the prosecution, which necessarily ought to have been placed before the Court at the time of trial. On perusing the entire record including the charge sheet, it is not clear whether the occurrence in crime No.118 and crime No.121 arising out of the same transaction or arising out of different transactions. Further, it is to be noted that in the dying declaration, Ex.P.11, recorded by the Magistrate, the deceased has stated that she some of the male persons on the canal bund witnessed the occurrence and that she does not know to which village they belong. But, in the statement, Ex.P.9, the deceased did not mention about witnessing the occurrence by anybody and the said statement is silent about the eye witnesses. Hence, there is a discrepancy in the statement, Ex.P.9 and the dying declaration, Ex.P.11, which is fatal to the case of the prosecution. Further, the investigating agency also failed to register the case immediately on receipt of information. According to P.W.15, the head constable, when the accused persons are present in the police station, the deceased along with their parents reached the same police station and informed regarding the incident. But it is the evidence of P.W.15 that since the deceased sustained injuries, she was taken to hospital along with her relatives and the accused persons also accompanied P.W.15 to the hospital. Even though the occurrence is immediately reported to P.W.15, he has not chosen to record the statement of the injured/deceased or P.W.1 immediately, instead he recorded the statement of the injured/deceased at the hospital after seven hours and the same is registered as crime No.121 of 2006, which creates a doubt about the manner, in which the case projected by the prosecution.
It shows that there is every possibility of implicating the accused in crime No.121 of 2006.
The learned trial Judge acquitted the other accused i.e., A.2 to A.4 on the ground that they were falsely implicated since the deceased has not sustained any other injuries except burn injuries. But, at the same time, it is evident from the evidence adduced by the prosecution that there was another occurrence of quarrel between the families of deceased and the accused, in which A.2 also sustained injuries since hot tea was poured on A.2, a case was registered for the offence under Section 324 IPC read with Section 34 IPC and that on the same day, in retaliation, the appellant and their family members poured kerosene and set fire to the deceased. The burn injuries are on the back, chest and legs on the deceased concerned and that the deceased succumbed to injuries after six days. In view of the said facts, this Court is of the view that the appellant/A.1 cannot be said to have any intention to cause death and also knowledge that his act would cause the death of the deceased. When the case is registered at the first instance on the basis of the statement of the victim under Section 324 IPC read with Section 34 IPC and when the statement of the victim does not disclose any intention of the accused causing death or an attempt to commit murder, the act of the appellant/A.1 would fall only under Section 324 IPC and not an offence under Section 304 Part I IPC.
At this stage, learned counsel for the appellant/A.1 submits that as the appellant/A.1 is the only bread winner in his family and he has to perform the marriage of his daughter, lenient view may be taken while imposing sentence of imprisonment. In view of the said submission and also in view of long lapse of time, this Court is inclined to take a lenient view while imposing sentence of imprisonment.
In the result, the conviction recorded by the trial Court against the appellant/A.1 for the offence under Section 304 Part-I IPC is hereby modified to the offence under Section 324 IPC, and the sentence of imprisonment imposed by the Court below is also modified and reduced, to the period, which the appellant/A.1 has already undergone. The fine amount imposed by the Court below is not interfered with.
The Criminal Appeal is accordingly partly allowed. Consequently, the miscellaneous petitions, if any pending in this appeal, shall stand closed.
JUSTICE RAJA ELANGO 12.08.2014 pln