HON'BLE SRI JUSTICE G. CHANDRAIAH AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Between:
Jaggani Bhojanna
Criminal Appeal No.446 of 2010 Dated: 10.06.2014
… Appellant/Accused And The State of Andhra Pradesh, Represented by Public Prosecutor, High Court, Hyderabad.
… Respondent HON'BLE SRI JUSTICE G. CHANDRAIAH AND HON'BLE SRI JUSTICE M.S.K.JAISWAL
Criminal Appeal No.446 of 2010
JUDGMENT: (Per Hon’ble Sri Justice G. Chandraiah)
This appeal is directed against the judgment dt. 18-02-2010 in S.C.No.336 of 2008 on the file of the Sessions Judge, Adilabad, convicting the appellant under Sec.235(2) Cr.P.C., for the offences under Sections 302 and 324 IPC, and sentencing him to undergo imprisonment for life and to pay fine of Rs.500/-, and in default to undergo simple imprisonment for one month, for the offence under Sec.302 IPC, and further sentencing to undergo rigorous imprisonment for two years and to pay fine of Rs.500/-, in default to suffer simple imprisonment for a period of one month, for the offence under Sec.324 IPC.
2. The appellant is the accused. He is charged for the offence punishable under Sec.302 IPC for causing the death of one Jaggani @ Chevibali Bhojanna (hereinafter referred to as ‘deceased’) by axing him, suspecting him as a sorcerer, and under Sec.324 IPC for causing hurt to PW.1.
3. The case of the prosecution is that on 19.11.2007 at about 6.15 pm., when the deceased was returning from the fields along with cattle, the accused came there with an axe, picked up quarrel with the deceased asking him as to why he was practicing sorcery against his mother, despite repeated requests, and beat the deceased with axe over his head, forehead and left side of neck, and thereby caused the death of the deceased on the spot. The de facto complainant-Jaggani Posavva (PW-1), who is the daughter of the deceased, was very much present there and tried to stop the accused, and in the process received an injury over her left hand; and when one Jyothi (PW.2), the niece of PW-1 intervened, the accused tried to beat her also, and therefore, she ran away inside the house due to fear and closed the doors. Further, there are disputes between the accused and the deceased in respect of cattle shed and the accused was suspecting that the deceased was practicing sorcery against his mother. On the basis of the complaint made by PW-1, a case in Cr.No.114 of 2007 was registered by Sarangapur Police, and after completion of the investigation, a charge sheet was filed against the accused.
4. During the course of trial, to prove its case, the prosecution examined PWs.1 to 10, and marked Exs.P.1 to P.17; and MOs.1 to 6 were taken on record. Basing on the said evidence, the learned Sessions Judge found the accused guilty of the offences under Sec.302 and 324 IPC, and convicted him for the said offences, aggrieved by which, the present appeal is filed.
5. Mrs. C.Vasundara Reddy, representing Mrs. D.Sangeetha Reddy, learned counsel for the appellant/accused, would submit that PWs.1 and 2, though stated to be the eye-witnesses, they have not witnessed the actual incident. Even according to the prosecution, they were rolling beedies, and there is no definite mention as to whether they were inside or outside the house, when the occurrence took place, which is said to have taken place in front of the house. Therefore, witnessing the scene of offence by PWs.1 and 2 itself is doubtful, and as such, they cannot be treated as eye-witnesses. Further, it is stated that as per the evidence of PWs.1 and 2, the deceased received two injuries – one is on the forehead and the other is on the backside of the neck, but as per the medical evidence under Ex.P.11, the injuries on the dead body of the deceased are otherwise. Therefore, the medical evidence does not support the prosecution as per the overt acts stated by PWs.1 and 2. Therefore, there is no satisfactory evidence proving the allegations made against the accused. Learned counsel further submits that though the prosecution failed to prove the charges levelled against the accused, the learned Sessions Judge, overlooking the evidence on record, convicted the accused. The learned counsel further argues that even assuming for a moment that the allegations levelled against the accused are proved, but having regard to the facts and circumstances of the case, it cannot be said that the occurrence took place with an intention to kill the deceased by the accused, which is very clear from the medical evidence, as stated by PW.7, the doctor, who observed three +ante-mortem injuries i.e., ‘(i) Fracture injury of left parietal bone of the skull, (ii) Fracture injury of left mandible bone, and (iii) Lacerated injury of the left ear lobule and pinna’. Further, PW.7, the doctor opined that the cause of death is due to head injury and multiple injuries and hypo-volemic shock, as is mentioned in Ex.P.11, post-mortem report. Therefore, the learned counsel submits that it cannot be said that the accused had an intention to kill the deceased, and thus, benefit of Sec.304, Part-I of IPC., may be given to the accused, by taking into consideration the confession statement made by the accused.
In support of her contentions, the learned counsel relied upon a Judgment of a Division Bench of this Court in Kandi Venkata
[1]
Suneel Kumar Reddy v. State of Andhra Pradesh .
6. On the other hand, learned Additional Public Prosecutor would submit that in the instant case PWs.1 and 2 are the eye-witnesses, who categorically stated that the accused beat the deceased with an axe over the head, forehead and also on the backside of his neck, and the Doctor opined that those injuries are possible with a weapon, like axe. The other evidence like post-mortem report, panchnamas and the statements of other witnesses examined corroborate with the evidence of PWs.1 and 2. In these circumstances, the learned Additional Public Prosecutor submits that the punishment imposed by the learned Sessions Judge does not require to be interfered by this Court.
7. The point that arises for consideration is whether the Judgment impugned is required to be interfered by this Court?
8. The case of the prosecution is that on 19.11.2007 at about 6.15 p.m., when the deceased was returning home from the fields, the accused came there, armed with an axe, picked up quarrel with the deceased, asking him why he was practicing sorcery against his mother in spite of repeated requests, and beat the deceased with the axe on his head, forehead and left side of the neck, and thereby the deceased died on the spot. Basing on Ex.P.1 Complaint and Ex.P.11, post-mortem report, evidence of PWs.1, 2 (eye-witnesses) and PW-7, it was found that the three lacerated injuries are sufficient for causing the death of the deceased. PWs.1 and 2, who are the daughter and grand-daughter of the deceased respectively, are the eye-witnesses to the occurrence of the incident and they have supported the case of the prosecution in all respects. In view of the consistent evidence of PWs.1 to 3, coupled with the evidence of PWs.7 & 8, which was supported by the medical evidence, the learned Sessions Judge, held that the accused gave three blows on the deceased with the axe, and thereby caused instantaneous death of the deceased. Apart from that, the learned Sessions Judge also held the prosecution has successfully established that the accused caused injury to PW-1, who tried to protect the deceased from an axe blow. Accordingly, the learned Sessions Judge convicted the accused, who is the appellant herein, for the offences under Sections 302 and 324 I.P.C.
9. We have heard both sides, and perused the entire material on record. The oral evidence of the eye-witnesses i.e., PWs.1 and 2, is clearly supported by the medical evidence of both the Doctors i.e., PW.7, who conducted post-mortem examination over the dead body of the deceased, and PW.8, who has treated the injured eye-witness i.e., PW-1. Therefore, we are of the view that the accused is responsible for causing the death of the deceased and injuries to PW.1, and to that extent we are not inclined to interfere with the findings of the learned Sessions Judge.
10. The learned counsel for the appellant/accused, alternatively, submits that even assuming for a moment that the accused is responsible for the injuries caused to the deceased, the accused had no intention to kill the deceased. Further, the record reveals that when the deceased was coming from the fields along with cattle, the quarrel took place between them, and in that process the accused brought an axe from inside the house, and hit the deceased, not with an intention to kill him, and it was only in the heat of passion during the process of quarrel with the deceased. Therefore, it may be considered to modify the impugned sentence imposed for the offence under Sec.302 IPC., to that of Sec.304 Part-I of the Indian Penal Code.
11. In the Judgment cited supra the facts are similar, wherein the Division Bench of this Court dealt with Sections 25, 26 and 27 of Indian Evidence Act and held as under:
“… … No doubt the confession is admissible against the accused, but if such confession favours the accused in extricating himself from the situation or to justify the conduct, which might be culpable, does Section 25 of Evidence Act prohibit using such confession to the extent it favours the accused.
… … … … Therefore, the law may be taken as well settled that if the accused himself is the informant of cognizable offence or gave a confession admissible to a limited extent under Sec.27 of Evidence Act or made extra-judicial confession before non-police person, statement made in the F.I.R. or extra-judicial confession or confession made to Police, can be – to the extent it is favourable to accused for any purpose either for consideration of acquittal or for modifying conviction – admitted.”
12. In the instant case, though the accused confessed the guilt, no specific evidence could be gathered from a perusal of the entire evidence on record to show that the accused intended to kill the deceased. The evidence on record only reveals the quarrel and occurrence of the incident. Therefore, considering the facts and circumstances, and the available evidence on record, and as the prosecution could not prove the intention of the accused to kill the accused, and following the Judgment cited supra, we are of the view that it is a fit case where the punishment imposed for the offence under Sec.302 IPC can be modified to that of the offence under Sec.304, Part-I IPC.
13. Accordingly, we set aside the conviction of the appellant/ accused under Section 302 I.P.C., and the imprisonment for life awarded thereunder in S.C.No.336 of 2008 on the file of the Sessions Judge, Adilabad, dt. 18.02.2010. Instead, we convict the appellant/accused under Sec.304 Part-I IPC, and sentence him to undergo rigorous imprisonment for a period of seven years and pay a fine of Rs.500/-, and in default of payment of fine, he shall undergo simple imprisonment for one month. However, the conviction and sentence, and also the fine, ordered against the appellant-accused, for the offence under Sec.324 IPC is maintained. Both the sentences of imprisonment shall run concurrently, and the period of sentence already undergone by the accused shall be given set off.
14. In the result, the appeal is partly allowed to the extent indicated above. The material objects shall be destroyed after the appeal time is over.
G. Chandraiah, J.
M.S.K. Jaiswal,J.
Dt.10.06.2014 Kv HON'BLE SRI JUSTICE G. CHANDRAIAH AND HON'BLE SRI JUSTICE M.S.K.JAISWAL
Criminal Appeal No. 446 of 2010
(Judgment of the Division Bench delivered by Hon’ble Sri Justice G. Chandraiah)
Dated: 10.06.2014 Kv
[1] 2010 (1) ALD (Crl.) 699 (AP)