THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1525 of 2008 12-09-2014 BETWEEN:
Sunkara Atchanna …..Appellant/Accused 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.1525 of 2008 JUDGMENT:
This Criminal Appeal is preferred by the appellant/accused against the Judgment dated 27.11.2008 passed in S.C.No.174 of 2007 by the Court of the VII Additional Sessions Judge (Fast Track Court), Visakhapatnam, 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 ten years, and to pay a fine of Rs.5,000/- (Rupees five thousand only), in default, to suffer rigorous imprisonment for a period of six months.
The case of the prosecution, as recorded by the Court below, is as follows:
That the accused is resident of Krishnapuram village and he is living by doing as lorry labour. At present, the accused was separately living with his parents and his daughter (deceased) in his own house and his wife along with his son were separately living by doing cultivation coolie work. Sandhya is the deceased in this case. P.W.1, wife of the accused separately living from him at Krishnapuram village along with her son P.W.2 and mother L.W.3 due to family disputes with the accused. On 29.05.2006 morning the deceased was going to her mother’s house from the house of her father (accused) and on that the accused rushed to the house of his wife P.W.1 in absence of his wife, the accused was taking his daughter by beating, meantime L.W.3 intervened and she was also thrown away, the accused forcibly took his daughter by beating forcibly on the way to his house and by the time L.Ws.4 to 6 witnessed the same, after taken away his daughter to his house the accused beat his daughter with highhanded manner and pushed her on a stone without mercy due to angry upon his wife, P.W.1, and as a result his daughter sustained fatal injury on the left side of her head and she died at the spot in front of his house. On the report given by P.W.1, P.W.10 registered the same as a case in Crime No.49 of 2006 under Section 302 read with Section 34 IPC of Padmanabham Police Station and after completion of investigation, the police filed charge sheet against the accused under Section 302 IPC.
To prove the guilt of the accused, P.Ws.1 to 11 were examined and Exs.P.1 to P.15 were marked on behalf of the prosecution. No oral or documentary evidence was adduced on behalf of the accused.
P.W. 1, mother of the deceased and P.W.2, minor brother of the deceased, deposed that when the deceased was visiting their house, the accused dragged her to his house and beat her indiscriminately and as such, the head of the deceased was hit to the stone, thereby causing severe injury and succumbed to death.
P.W.1 also deposed that they are living separately and she filed a maintenance case and in that, an amount of Rs.250/- each for her children per month, but the accused has not been paying the said amount. P.Ws.3, 4 and 6, who are claiming to be the eyewitnesses, deposed regarding the occurrence. P.W.5 is RMP Doctor deposed that the accused informed that the deceased has vomitings and asked him to come, and as such, when he went to the house of the accused, the deceased was lying on the cot and he found that there is an injury (major) on the left side of the head of the deceased.
P.W.7 is the Doctor who conducted Post Mortem Examination, deposed that the cause of death is shock and hemorrhage due to major head injury and Ex.P.2 is the Post Mortem Report. P.W.8, who is the villager of the said village, deposed that he heard the villagers talking that the accused killed the deceased and then, he went to the house of the accused and found the deceased dead. P.W.9, who is the panchayat secretary, deposed that the inquest was conducted on the next day of occurrence. He further deposed that they opined that the deceased died due to the beating by her father due to their family disputes. P.Ws.10 and 11 are the investigating officers and they deposed about their conducting investigation.
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?
P.W.1, the mother of the deceased, deposed that when she went to the coolie work, entire occurrence was happened. She deposed that when the accused was dragging the deceased, her son followed them and that the accused beat the deceased, hit her head to the stone resulting the death of the deceased, whereas
P.W.2 in his evidence deposed that he followed the accused when he was dragging the deceased and when the accused tried to beat him, he ran away to his house and then several persons were talking that his father killed his sister. Hence, the evidence of P.W.1 is contradictory to the evidence of P.W.2. Further, P.Ws.3, 4 and 6, who claimed to be the eye witnesses, did not depose about the accused beating the decease’s head to the stone. They only deposed that they saw the accused dragging the deceased and beat her, and when they intervened, the accused replied that she is his daughter and he can do whatever he wants. Hence, this Court, on perusing the entire evidence adduced on behalf of the prosecution, came to the conclusion that there is no eye witness witnessing that the accused hit the head of the deceased to the stone, which resulted in the death of the deceased. Hence, in the absence of any eye witness to the said occurrence and when there is discrepancy between the evidence of P.Ws.1 and 2 with regard to the act of the accused hitting the head of the deceased to the stone resulting in severe injury, it cannot be said that the prosecution has proved the guilt of the accused for the offence under Section 304 Part II IPC.
Further, the point remains is whether the said injury is caused with an intention to cause death of the deceased or the accused has knowledge that the injury would cause the death of the deceased. The learned trial Judge is of the view that the accused is not having any intention to cause the death, but has knowledge that his act would cause death, and hence, convicted him for the offence under Section 304 Part II IPC.
For deciding the point, it is necessary to peruse the charge framed by the Court below and the same reads as under.
“That the deceased Sandhya is your daughter; you are having disputes with your wife; your wife and son are living separately; that on 29.5.2006 morning when the deceased was going to her mother’s house you beat her and pushed her on a stone and as a result the deceased sustained fatal injury on the left side of her head and she died at the spot and that you thereby committed an offence punishable under Section 302 IPC, and within my cognizance.”
In the said charge, it is stated that by pushing the deceased, she has contacted a stone and as a result, the deceased sustained fatal injury and died due to the said injury. The said act cannot be stated to be an act in the knowledge of the accused that his act would cause the death of the deceased. From the reading of the evidence and also in view of the discrepancy in the evidence of P.Ws.1 and 2, it cannot be presumed that the accused is having knowledge that his act of causing an injury 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. Hence, 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, and as such, 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 injury caused is severe in nature and that said injury 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