HON'BLE SRI JUSTICE L.NARASIMHA REDDY AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Between:
Criminal Appeal No.384 of 2010 Dated: 21.04.2014 Ulapa Venkataramana .. Appellant/accused 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.384 of 2010 JUDGMENT: (Per Hon’ble Sri Justice M.S.K.Jaiswal) The appellant is the accused in S.C.No.329 of 2009 on the file of the II-Additional District and Sessions Judge, Chittoor at Madanapalle. He was charged singularly with an offence punishable under Section 302 of I.P.C., for having caused the death of his wife – Sugunamma (hereinafter referred to as ‘the deceased’) on 14-12-2008 at about 06.00 a.m., in his house at Charala village, Chowdepalli Mandal, by beating her with a pestle on her head while she was sleeping. Through its Judgment, dated 27-01- 2010, the trial Court found the accused guilty and sentenced him to undergo imprisonment for life and to pay a fine of Rs.2,000/-, in default to undergo rigorous imprisonment for one year.
2. The case of the prosecution, in brief, is as under:-
The accused is a tailor by profession and lived in Bangalore for about 25 years along with the deceased. Thereafter, they shifted to Madanapalle and from there to Charala village, where they were residing along with Ankamma – PW.2, the mother of the accused. The accused is alleged to be a person of sadist mentality and arrogant by nature. He used to frequently quarrel with the deceased on the ground that all his income is being spent for her treatment.
On 14-12-2008 at about 06.00 a.m., while the deceased was sleeping, the accused beat her with a pestle on head, which resulted in her instantaneous death. Thereafter, the accused went to his cousin-sister Syamala – PW.1 and informed the same, and PW.1 went to Chowdepalli Police Station and filed complaint Ex.P.1. Crime No.87 of 2008 was registered and the investigation was taken up. Scene of offence was visited, panchanama was conducted, inquest over the dead body was held, and the same was sent for post-mortem examination. Statements of the witnesses were also recorded. The bloodstained objects were seized. On 15- 12-2008 the accused was arrested and he confessed having committed the crime. After conclusion of the investigation, the charge-sheet was filed. Charge referable to Section 302 of I.P.C., was framed. The accused specifically pleaded that he beat his wife with a pestle but not with an intention to kill her. Trial was taken up and the prosecution examined PWs.1 to 8, Exs.P.1 to P.16 were filed and M.Os.1 to 5 were taken on record.
3. Learned Counsel for the accused submits that in view of the specific contention of the accused that he beat the deceased due to her attitude but never intended to kill her, the trial Court ought to have held that the accused has committed the offence, which attracts the ingredients of Part-II of Section 304 I.P.C., but has erroneously found the accused guilty of the offence under Section 302 I.P.C. Learned Counsel further submits that except for the statement of the accused, there is absolutely no other evidence to connect the accused with the crime.
4. Learned Additional Public Prosecutor, on the other hand, submits that the accused has admittedly gave a deadly blow on the vital part of the body with the pestle and by no stretch of imagination, it can be said that he did not intend to kill the deceased. She contends that the place of the injury and the weapon used by the accused clearly show that he intended to cause the death of the deceased and not otherwise. She further submits that the trial Court has correctly appreciated the material on record and found the accused guilty of the offence under Section 302 I.P.C.
5. The point for consideration is as to whether the accused has committed an offence of murder punishable under Section 302 I.P.C., or whether he is guilty of culpable homicide not amounting to murder attracting Section 304 I.P.C.?
6. Point:- This is one of the rare cases where the accused admitted his culpability throughout the trial but pleaded that he never intended the consequence, which ultimately resulted. In other words, the contention of the accused is that he, no doubt, beat the deceased in the morning of 14-12-2008 with a pestle on head, as alleged, but he never intended to kill her. This, according to the accused, was due to the attitude of the deceased towards his mother, PW.2.
7. Briefly stated, the case of the prosecution is that the accused beat his wife with a pestle on head on 14-12-2008 at about 06.00 a.m., when she was sleeping, and it resulted in her instantaneous death. This was witnessed by PW.2, the mother of the accused, and it is alleged that immediately after the incident, the accused went to the house of his cousin sister-PW.1 and informed her about the crime committed by him. She lodged the complaint Ex.P.1 and set the criminal law into motion. As expected, the cousin sister and the mother of the accused turned hostile and did not support the case of the prosecution. Similarly, PW.3, who is an independent witness, also turned hostile and denied of having stated before the police as in Ex.P.4 to the effect that immediately on coming to know about the death of the deceased, he went to her house and found her lying dead.
8. The dead body was subjected to post-mortem examination and the Doctor PW.5, who conducted the autopsy and issued the report Ex.P.8, opined that the cause of death is on account of the shock and haemorrhage due to multiple injuries on head with a blunt object. PW.5, the Doctor found the following injuries on the deceased:-
1) A compound depressed wound of size 12 x 6 cm., on the forehead. No fresh bleeding, clotted blood present all over the wound.
2) A compound depressed wound on the nose area, extending upto the end of left eye of size 8 x 6 c.m., Nasal bone completely crushed. Left eyeball ruptured.
3) A lacerated wound of size 6 x 4 c.m., on the centre of right cheek, bone deep.
4) A lacerated wound of size 4 x 2 c.m., on the right ear area.
5) A lacerated wound on the upper lip of size 5 x 2 c.m.
9. Chapter XVIII of the Code of Criminal Procedure deals with trial before a Court of Session. Sub-section (2) of Section 228 Cr.P.C., reads:
‘Where the Judge frames any charge under clause (b) of sub- section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried’.
Section 229 Cr.P.C. mandates that if the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him thereon.
10. We are conscious of the fact that the Court should not act upon the plea of guilty, in respect of serious offences and should proceed to take the evidence as if the plea had been one of not guilty and the case must be decided on merits. What follows is that the Court must be satisfied that the facts placed before it in support of the plea of guilt must be sufficient to prove the offence alleged.
11. In the instant case, the requirements of Section 228 Cr.P.C. were fulfilled by the trial Court. The accused pleaded that he beat his wife (deceased) with a pestle but not with an intention to kill her. Neither it is pleaded by the accused nor there is any material to show that the said plea is not voluntary. Law mandates that at any stage of the trial, the trial Court may put such questions to the accused as it considers necessary. When this is discretionary, it is, however, mandatory that after the witnesses for the prosecution havebeen examined and before the accused is called upon to enter his defence, the trial Court shall question the accused generally on the case. This is the mandate of Section 313 Cr.P.C. Sub-section (4) of Section 313 Cr.P.C., further provides that the answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.
12. In the case in hand, during the examination of the accused under Section 228 Cr.P.C., he stated that he beat his wife, but not with an intention to kill her. When examined under Section 313 Cr.P.C., the accused stated that he beat his wife with a pestle and within 45 minutes thereafter, he went to Chowdepalli Police Station and surrendered himself before the police. He further stated that he beat his wife being vexed with her behaviour towards his mother and that he committed mistake.
Learned Counsel for the accused submits that the act of the accused clearly amounts to culpable homicide not amounting to murder, which is punishable under Section 304 I.P.C., but not Section 302 I.P.C.
13. The known factors which reduce murder to culpable homicide are that the act should have been committed:
(a) without premeditation;
(b) upon a sudden quarrel;
(c) in the heat of passion; and
(d) without the offender’s having taken undue advantage or acted in a cruel or unusual manner.
14. The distinction between these two offences is succinctly set forth, in State of A.P., V. Rayavarappu Punnayya’s case (AIR 1977 S.C., 45). The relevant passage reads:
“In the scheme of the Penal Code, ‘culpable homicide’
is genus and ‘murder’ its specie. All ‘murder’ is ‘culpable homicide’ but not vice versa. Speaking generally ‘culpable homicide’ sans ‘special characteristics of murder’ is culpable homicide not amounting to murder. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognizes three degrees of culpable homicide. The first is, what may be called, culpable homicide of the first degree. This is the gravity form of culpable homicide which is defined in Section 300 as ‘murder’. The second may be termed as ‘culpable homicide of the second degree’. This is punishable under the 1st part of Section 304. Then, there is ‘culpable homicide of the third degree’. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades.”
15. The evidence on record proves the fact that the deceased was found lying dead with injuries on head in the house of the accused. The evidence of the Medical Officer is crucial in determining the intention of the accused. The nature of weapon used by the assailant also plays prominent role in determining the intention of the accused. When a person gives blows with hard object, such as pestle on head, which is most vital part of the body, and causes as many as five injuries, the intention to cause death can certainly be attributed to him. The place of the injury and the weapon used, coupled with the surrounding circumstances in which the assault is made, determines the intention of the assailant. In the instant case, absolutely there was no provocation. There was neither any scuffle between the couple nor was there any scope for the accused to feel that his act of giving a deadly blow on the head of the deceased with a pestle, that too when the deceased was seeping in the house was a compulsive act. In full senses and when the deceased wife was in a hapless condition, and was sleeping, the accused picked up a pestle from around, and dealt severe blow on the head, which resulted in the instantaneous death. All the circumstances put together have to be considered to decide the intention of the accused and whether the case falls under Section 302 or 304 I.P.C.
16. Upon considering the evidence on record, we have no hesitation in holding that the act of the accused clearly amounts to murder, punishable under Section 302 I.P.C., but by no stretch of imagination, can it be said that it fits into the scope of culpable homicide, not amounting to murder, so as to invoke Section 304 I.P.C. The trial Court has correctly appreciated the evidence and found the accused guilty of the offence punishable under Section 302 I.P.C. We see no reason to interfere with the said finding, which is based on the material on record. There are no merits in the appeal and the same is liable to be dismissed. The point is accordingly answered.
17. In the result, the Criminal Appeal is dismissed. The material objects, if any, shall be destroyed after the appeal time is over.
L.Narasimha Reddy,J.
M.S.K. Jaiswal,J.
Date: 21.04.2014
NOTE: Mark L.R.Copy
(b/o.smr)
HON'BLE SRI JUSTICE L. NARASIMHA REDDY AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Criminal Appeal No.384 of 2010
(Judgment of the Division Bench delivered by Hon’ble Sri Justice M.S.K.Jaiswal)
Dated: 21.04.2014
Smr
THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY
and
THE HON’BLE SRI JUSTICE M.S.K.JAISWAL Crl.Appeal No. 384 of 2010
%21-04-2014
# Ulapa Venkataramana … Appellant-Accused
Vs.
$ State of A.P., rep. by its P.P., High Court of A.P., Hyderabad
...Respondent
<GIST:
>HEAD NOTE:
! Counsel for the Appellant : Sri E. Venkata Reddy.
^ Counsel for respondent : Public Prosecutor
? CASES REFERRED : ….