HON'BLE SRI JUSTICE L. NARASIMHA RED AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Between:
Criminal Appeal No.400 of 2010 Dated: 23.04.2014 Pothu Venkata Ramana @ Ramana … Appellant And State of Andhra Pradesh, Represented by PP. High Court, Hyderabad.
… Respondent HON'BLE SRI JUSTICE L. NARASIMHA REDDY AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Criminal Appeal No.400 of 2010 JUDGMENT: (Per Hon’ble Sri Justice M.S.K.Jaiswal) The appellant is the accused in S.C.No.357 of 2007 on the file of the III-Additional District & Sessions Judge, Kakinada. He was charged with the offences punishable under Sections 302, 324 and 506 (2) I.P.C., for having caused the death of the deceased Dakamuri Srinivas and injuries to Dakamuri Sai Sirisha PW.7 and Chollangi Venugopal PW.3 on 23-07-2006 at about 02.00 p.m., at Gandhinagar, Kakinada.
2. The case of the prosecution, in brief, is as under:-
The accused and the deceased are the residents of the same locality. The accused was in the habit of consuming alcohol and creating nuisance in and around the area. The deceased was a pushcart vendor and used to sell foodstuffs, cigarettes etc. The accused used to purchase certain items from the deceased at times on credit. The accused was due Rs.1,000/- to the deceased. On one occasion, the deceased refused to give cigarettes to the accused on credit. Due to the said refusal, the accused bore grudge against the deceased.
It is alleged that on 23-07-2006 at about 02.00 p.m, the accused went near the shop of the deceased and beat the deceased with a wooden plank of a cot – M.O.1 on the head, that the deceased tried to ran away, and the accused chased him and again beat him. It is further alleged that the daughter of the deceased PW.7 came there with the lunch for the deceased and when she pleaded with the accused not to beat her father, the accused beat her with the same stick on shoulder. Thereafter, the accused ran into the house of PW.3 and held the 1 ½ year old son of PW.3 into his hands, picked up a scissors M.O.2 lying there and threatened the people gathered there to allow him to go away, failing which he will cause harm to the child. Somehow, PW.3 managed to get the child released and in that process, he sustained injury with the scissors.
The incident is said to have witnessed by Kinthada Srinivasanandha Kishore PW.1, who reported the matter to II- Town Police Station, Kakinada by about 03.30 p.m. Ex.P.1 is the complaint and on its basis, the S.I. of Police registered the case in Cr.No.152 of 2006 and issued the F.I.R.
Investigation was taken up, scene of offence panchanama was conducted, statements of the witnesses were recorded, inquest was held, the dead body was sent to post-mortem examination and the injured were referred to the hospital. On the same day at about 08.00 p.m., the accused was arrested and he confessed having committed the crime in the presence of PW.6 and another. After completing the investigation, charge-sheet was filed.
Charges referable to Section 302, 324 and 506 (2) I.P.C. were framed and put to the accused. On his pleading not guilty, trial was taken up. PWs.1 to 10 were examined, Exs.P.1 to P.15 were filed and M.Os.1 to 9 were taken on record.
Through its Judgment, dated 31-03-2009, the trial Court found the accused guilty of all the charges, convicted and sentenced him to undergo imprisonment for life and a fine of Rs.100/-, in default simple imprisonment for fifteen days for the offence under Section 302 I.P.C. He was also sentenced to undergo imprisonment for three months and fine of Rs.50/-, in default simple imprisonment for ten days each for the offences punishable under Sections 324 and 506 (2) I.P.C. All the sentences are directed to run concurrently. Hence, the appeal.
3. Learned Counsel for the accused submits that except for the interested testimony of PWs.1 to 4 and 7, no independent witnesses is produced to show that it is the accused who caused the injuries to the deceased, PWs.3 and 7. He further submits that the incident did not take place in the manner it is alleged. It is his contention that as a matter of fact, when the accused went to the shop of the deceased, it is the deceased who chased the accused and in that process, fell down on hard surface and sustained injuries. Learned Counsel further contends that the trial Court has not appreciated the evidence on record in proper perspective and erroneously found the accused guilty. Alternatively, it is contended by the learned Counsel that by no stretch of imagination it can be said that the accused intended to cause the death of the deceased and therefore the offence, even if it is proved, will attract the ingredients of Section 304 I.P.C., but not Section 302 I.P.C.
4. Learned Additional Public Prosecutor, on the other hand, submits that there is consistent and cogent evidence of the prosecution witnesses who have unshakenly deposed that it is the accused who caused the injuries to the deceased, PWs.3 and 7. She further submits that since the injury on the deceased was on head with a wooden plank of a cot, it prove fatal, resulting in the instantaneous death. Learned A.P.P. further contends that the trial Court has considered all the aspect in proper perspective and delivered the verdict, which cannot be assailed. The appeal is therefore liable to be dismissed.
5. The point for consideration is as to whether the prosecution proved its case against the accused beyond reasonable doubt so as to sustain the Judgment or whether it needs to be set aside or modified?
6. Point:- The case of the prosecution is that the accused was a man without any avocation and was wandering here and there indulging in petty offences. The accused was in the habit of threatening the people and was in the habit of consuming the eatables etc., from the shops without paying anything. The deceased was doing petty business in eatables, cigarettes etc. He was doing business on a pushcart by keeping it near the wine shop. The accused used to take commodities from the deceased and was due a sum of Rs.1,000/-. Inspite of that the accused demanded the deceased to give cigarettes to him on credit and upon its refusal, the incident is said to have taken place on 23-07- 2006. It is alleged that the accused went to the shop of the deceased and beat him with a raft of a wooden cot and when the tender aged daughter of the deceased PW.7 intervened, the accused also beat her on the shoulder. Thereafter, the accused is said to have ran inside the house of PW.3 and criminally intimidated PW.3 by holding the infant son of PW.3 and armed with a scissors, the accused threatened the people to allow him to escape from there. PW.1 is the complaint and also an eye- witness to the incident. He deposed that on the date of the incident, when he was at the pan shop of the deceased, the accused came there and found fault with the deceased for not giving cigarettes on credit. He further deposed that the accused beat the deceased with a wooden piece of cot and when the deceased ran towards rythu bazaar, the accused again beat him on head. It is further in his evidence that the daughter of the deceased PW.7 came there and the accused also beat her with the same wooden piece on shoulder. He also deposed about the accused running into the house of PW.3 and causing injury to PW.3 with the scissors. It is in the evidence of PW.1 that thereafter he went to the Police Station and lodged the complaint Ex.P.1. He identified M.Os.1 and 2 as the stick with which the accused beat the deceased and the scissors with which he caused injury to PW.3.
7. PW.2 is another eye-witness to the incident and he deposed that he has seen the accused beating the deceased with a wooden piece on head and also causing injuries to PWs.7 and 3. He also identified M.Os.1 and 2 as the weapons with which the accused beat the deceased and the injured.
8. These two material witnesses are independent witnesses and their presence at the time of the incident was not disputed. What is suggested to them is that at the relevant time, it is the deceased who chased the accused and in that process, the deceased fell down and sustained injuries. In other words, their evidence with regard to the incident having taken place on the day, time and place, as alleged is snot disputed. Their evidence is consistent and cogent. They have not only denied the defence of the accused but categorically asserted that it is the accused who beat the deceased with a wooden plank and also caused injuries to PWs.3 and 7. Even though, they are elaborately cross-examined, nothing concrete is elicited from them for disbelieving their version.
9. PW.3 is another victim at the hands of the accused. He deposed that on the date of the incident, he heard the cries, came out of the house, and found the deceased on the ground and the accused holding wooden piece in his hand. He noticed the accused beating the deceased with the said wooden plank on the head. He further deposed that the accused ran into his house, picked up his son and also scissors, and pointed out it towards the child, and threatened others not to come near him. He further deposed that somehow he got his son freed from the hands of the accused and the accused stabbed him with the blunt side of the scissors, due to which he sustained injuries. The evidence of PW.3 is also inspiring and nothing is elicited from him for disbelieving his evidence insofar as the incident proper is concerned. PW.3 corroborates PWs.1 and 2 on all aspects.
10. PW.4 is a resident of a portion, which is adjacent to the portion, in which the accused lives. He deposed that in their house, the broken wooden piece of a cot was lying and M.O.1 is one of the broken pieces of the cot. PW.5 is the photographer, who took the photos and PW.6 is the panch witness in whose presence scene of offence panchanama was conducted.
11. PW.7 is the daughter of the deceased and she is aged about 11 years. At the time when the incident took place, she was studying 3rd class. She being a child witness, the trial Court examined her after being satisfied about the capacity of the witness to give evidence. She deposed that on the date of the incident, she went to the shop of her father to give him lunch. At that time, the accused came there and beat her father on head with a wooden piece of cot. She further deposed that she caught hold the legs of the accused requesting him not to beat, but the accused did not stop beating her father. She further deposed that the accused also beat on her shoulder with the wooden piece. The child witness has been subjected to cross-examination. She withstood the same without any demur. She is not shaken from her original version that it is the accused who beat her father with a wooden plank on head and also on her shoulder. She has no animosity or ill-will against the accused. The testimony of the child witness PW.7 sound natural and trustworthy.
12. PWs.8 and 9 are the Medical Officers who conducted autopsy over the dead body of the deceased and also treated PWs.3 and 7. PW.8, the doctor found the following injuries on the deceased:-
1) A transverse bone deep lacerated wound of 5 x 2 x 1 cms., size present over mid back lower head region (occipital). It is 10 cms., to the right of mid aspect of the pinna of right ear and it is 11 cms., above the mid aspect of nape of the neck region and is strained with blood and reddish in colour.
2) An interted ‘Y’ shaped bone deep lacerated wound of 5 x 1.5 x 1 cms., size and one end of the ‘Y’ is extended further 5 cms., and the other end is extended further 3 cms., and the width is 1.5 cms., and depth is 1 cm., is present obliquely over left front and midback head region (fronto parietal). It is 10 cms., above the left ear and 28 cms., above the mid aspect of left collar bone reddish in colour and is stained with dried blood.
3) An oblique bone deep lacerated wound of 5 x 2 x 1 cms., size present over right front head (frontal region). It is 3.5 cms., above the mid aspect of right eyebrow and it is 9.5 cms., to the right of right ear. Reddish in colour and is stained with dried blood.
4) An obliquely placed reddish abrasion of 4 x 2 cms., size present over left forehead region. With a pattern of irregular surface of an hard object is seen.
5) A skin deep crescentric lacerated wound of 3 x 0.5 x 0.5 cms., size surrounded by a contusion of 4 x 3 cms., size present over left forehead region. 0.5 cms., above the left eyebrow stained with dried blood.
13. The Medical Officer stoutly denied the suggestion that such injuries are possible if a man falls on hard surface. The evidence of the doctor negates the defence of the accused that the deceased sustained injury due to fall but not as alleged. That apart, the nature of injuries are such that they could not have been caused due to a fall howsoever hard a substance may be.
14. PW.9 another Doctor found simple injuries on the person of PWs.7 and 3.
15. The evidence of the prosecution witnesses is cogent and consistent. It establishes beyond doubt that it is the accused who beat the deceased with a wooden plank on head and also on the hand of PW.3 and caused injury with a blunt side of the scissors on PW.3. We see no reason to disbelieve their testimony which is consistent and sounds natural and truthful.
16. The other aspect of the matter is as to whether the said act of the accused amounts to murder punishable under Section 302 I.P.C., or whether it falls within the contours of culpable homicide not amounting to murder punishable under Section 304 I.P.C. It has come in the evidence that the accused was addicted to alcohol and was not even a mentally alert person. He appears to have been behaving erratically. The weapon used by the accused is a broken leg of a cot. The injury caused by the accused is on the head of the deceased, which proved fatal. Taking into consideration of the above facts and circumstances, we feel that the accused had no intention to kill the deceased, but certainly had knowledge that it is likely to cause death. Therefore, he is liable to be punished under Section 304 Part II of I.P.C. His conviction and sentence for the offences punishable under Sections 324 and 506 I.P.C., are liable to be sustained. The point is accordingly answered.
17. In the result, the Criminal Appeal is partly allowed. The conviction ordered against the appellant-accused in S.C.No.357 of 2007 on the file of the III-Additional District & Sessions Judge, Kakinada, for the offence punishable under Section 302 I.P.C., is modified to be the one under Section 304 Part II I.P.C., and the sentence is reduced to rigorous imprisonment for seven years. The conviction for the offence punishable under Section 324 I.P.C., and the one under Section 506 I.P.C., together with the sentence, is upheld. The component of fine shall remain as it is.
L.Narasimha Reddy,J.
M.S.K. Jaiswal,J.
Dt.23.04.2014
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HON'BLE SRI JUSTICE L. NARASIMHA REDDY AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Criminal Appeal No.400 of 2010 (Judgment of the Division Bench delivered by Hon’ble Sri Justice M.S.K.Jaiswal) Dated: 23.04.2014
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