THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1605 of 2008 12-09-2014 BETWEEN:
Malleboina Sreeramulu …..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.1605 of 2008 JUDGMENT:
This Criminal Appeal is preferred by the appellant/accused against the Judgment dated 16.12.2008 passed in S.C.No.438 of 2008 by the Court of Principal Sessions Judge, at Khammam, whereby the learned Judge convicted the appellant/accused for the offence under Section 304 Part-II IPC and accordingly sentenced him to suffer rigorous imprisonment for a period of five years, and to pay a fine of Rs.200/- (Rupees one hundred only), in default, to suffer simple imprisonment for a period of one month.
The case of the prosecution is as follows:
That the marriage of the accused was performed with the daughter of the deceased about 12 years prior to the occurrence and they were blessed with two children. About fifteen days prior to the date of incident, the deceased invited his daughter and the accused to attend laying foundation stone function of his new house. The accused did not attend the function, but his wife attended the function. The accused started quarrelling with his wife and beat her, upon which she came to her parents’ house and started living there. While so, on 23.12.2007 at about 10.00 a.m., the accused went to the house of the deceased with four goats which were given to him at the time of marriage and left them at the house of the deceased. By seeing this, the deceased asked the accused why he is leaving only four goats and why he is not keeping other animals and sheep. The wife of the accused also supported her father. Upon which, the accused started quarrelling with his wife and beat her with stick on her head and on waist. When the deceased intervened to rescue her daughter, the accused beat the deceased with the same stick forcibly on his head and caused severe bleeding injuries and immediately the deceased was shifted to the hospital, and later succumbed to injuries. P.W.1, the son of the deceased, lodged a complaint before the Police, and the same was registered and was investigated. Police filed charge sheet after completion of the investigation.
To prove the guilt of the accused, P.Ws.1 to 16 were examined and Exs.P.1 to P.22 and M.Os.1 and 5 were marked on behalf of the prosecution. No oral or documentary evidence was adduced on behalf of the accused.
P.W.1, son of the deceased and P.W.2, daughter of the deceased and wife of the accused, deposed regarding the occurrence. They deposed that the accused quarreled with P.W.2 in connection with her attendance to the function of laying foundation stone of the house of the deceased, and later P.W.2 left the place of the accused and residing at her parents house. On the day of occurrence, the accused came with four goats to the house of the deceased and left them as they were given to the accused at the time of his marriage by the deceased and that the deceased questioned the accused about the remaining animals and sheep and P.W.2 also supported the deceased. On that, the accused while beating P.W.2 with the cart peg (stick), the deceased intervened and on that, the accused beat him with the same stick on his head and later succumbed to injuries. P.Ws.3 to 5, who claimed to be the eye witnesses, also deposed regarding the occurrence. P.W.6, in whose auto, the deceased was shifted to hospital. P.W.7 deposed that he was summoned to the house of the deceased and that the police observed scene of offence in their presence. P.W.8, one of the attestors of panchanama, turned hostile and has not supported the case of the prosecution. P.W.9, deposed that the police visited the hospital and seized apparel of the deceased in their presence, and he along with P.W.8 attested the panchanama. P.W.10 deposed that when he went to the hospital to see the deceased, the deceased was no more. Police held inquest over the deadbody of the deceased in his presence. P.Ws.11 and 12 deposed that the police summoned them and in their presence, the accused confessed the commission of offence and handed over the cart peg to the police. P.W.13, the then Sub Inspector of Police, deposed that he observed the scene of offence and prepared crime detail and also prepared rough sketch of the scene of offence. He further deposed that he has examined and recorded the statements of P.Ws.1 and 2. P.W.14, the then Circle Inspector of Police, deposed that he conducted investigation and filed charge sheet. P.W.15 is the Doctor, who conducted autopsy over the dead body of the deceased and gave Post Mortem Report. P.W.16 is the Doctor, who treated the deceased and found injuries on the body of the deceased.
On appreciation of oral and documentary evidence, the trial Court having come to the conclusion that the accused is not having any intention to cause death of the deceased, but he has knowledge that his act would cause death, convicted the appellant/accused for the offence under Section 304 Part II IPC, and accordingly sentenced him as stated above. Aggrieved by the same, the present appeal is preferred by the appellant/accused.
Heard and perused the records.
Whether the conviction imposed by the Court below against the appellant/accused is sustainable in law?
Even according to the case of the prosecution, the occurrence took place on 23.12.2007, whereas the complaint was lodged on 24.12.2007. In the complaint also, it is not stated that the accused is intended to cause the death of the deceased or that the accused has knowledge that his act would cause the death of the deceased. From the reading of the evidence and also the complaint, the act is done in a sudden quarrel and when the deceased interfered with the accused when he was beating her wife, the accused, who was already enraged, suddenly beat the deceased with the stick. It is in a sudden quarrel the occurrence has happened and it is not a premeditated intentional act. Further, it cannot be presumed that the accused is having knowledge that his act of causing an injury with a cart peg would likely to cause death of the deceased. Hence, the accused cannot be attributed to have any intention to cause the death of the deceased nor can be attributed to have any knowledge that his act would cause the death of the deceased. The Post Mortem Report, Ex.P.18, reveals that the death is caused due to injuries. This Court is of the view that the prosecution failed to prove that the accused has knowledge that his act would cause death of the deceased. When once the prosecution failed to prove that the accused has knowledge that his act would cause death, the conviction and sentence imposed by the Court below against the appellant/accused for the offence under Section 304 Part II IPC cannot be sustained and is liable to be set aside.
This Court is of the view that the injuries caused are severe in nature and that said injuries caused the death of the deceased. Hence, the act of the appellant/accused would be an offence under Section 326 IPC, and as such, the conviction imposed by the Court below for the offence under Section 304 Part II IPC is modified to one under Section 326 IPC.
At this stage, learned counsel for the appellant/accused submits that as the appellant/accused is the only bread winner in his family and he has to lookafter his parents, 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/accused for the offence under Section 304 Part-II IPC is hereby modified to the offence under Section 326 IPC, and the sentence of imprisonment imposed by the Court below is also modified and reduced, to the period, which the appellant/accused 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 12.09.2014 pln