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HON'BLE SRI JUSTICE JOYMALYA BAGCHI
AND
HON'BLE SRI JUSTICE A.V.SESHA SAI
CRIMINAL APPEAL No. 422 of 2014
JUDGMENT: (Per Hon'ble Sri Justice Joymalya Bagchi)
This Criminal Appeal is directed against the
Judgment and order dated 07.04.2014 passed in SC
No.599 of 2011 by the learned IV Additional District and
Sessions Judge, Kakinada, wherein the 1st appellant/A-1
was found guilty for the offence punishable under Section
302 IPC, convicted and sentenced to undergo
imprisonment for life and to pay a fine of Rs.500/- and in
default, to suffer simple imprisonment of three months
and the 2nd appellant/A-2 was found guilty for the offence
punishable under Section 323 IPC and sentenced to
undergo simple imprisonment for a period of six months
and to pay a fine of Rs.500/- in default, to suffer simple
imprisonment for two months.
The prosecution case, in brief, is as follows:
The appellants are husband and wife. The
1st appellant and P.W.1 are brothers by relation. P.W.1 is
the husband of the deceased-Venkata Lakshmi. There was
a dispute between the appellants and P.W.1 with regard to
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payment of electricity consumption charges. Over this
issue, on 06.10.2010 at about 7.00 a.m. an altercation
took place between the appellants and P.W.1. Due to fear,
P.W.1 and the deceased went to Kirlampudi police Station
and lodged a complaint, which was entered by P.W.14 in
the general diary and P.W.13 was sent to summon the
accuseds. When P.W.14 came to the spot, 1st appellant/
A-1 was not present and he talked to the 2nd appellant/
A-2. This enraged the 2nd appellant/A-2. She went to the
house of the deceased and abused her. The 2nd
appellant/A-2 caught hold of the tuft of the deceased and
pushed her down. Suddenly, the 2nd appellant/A-2 came
to the spot with a crow bar and poked the deceased on her
mouth and neck and ran away along with crime weapon.
The deceased was initially admitted in Community Health
Centre, Prathipadu and later shifted to Government
General Hospital, Kakinada. P.W.14 recorded the
statement of P.W.1 and registered a case being crime
No.121 of 2010 on the file of the Station House Officer,
Jaggampeta Police Station for the offence punishable
under Section 307 r/w.34 IPC. P.W.15-Sub Inspector of
Police, Jaggampeta who was the in charge of Kirlampudi
Police Station took up investigation, visited the scene of
offence, and seized the blood stained white petty coat
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under the cover of scene observation report. Subsequently,
on 07.10.2010 at 11.00 a.m. the victim died and the police
altered the offence in the First Information Report from
Section 307 r/w.34 IPC to Section 302 r/w.34 IPC and
submitted the altered First Information Report. Thereafter,
inquest and post-mortem examination was conducted over
the dead body of the deceased. In course of investigation,
the appellants were arrested and sent to judicial custody.
After filing charge sheet, the case was taken on file
against the accuseds under Section 302 r/w.34 IPC by the
learned Judicial First Class Magistrate, Prathipadu. Since
the offence is triable by the Court of Sessions, the case
was made over to the Court of IV Additional District and
Sessions Judge, Kakinada. Charge under Section 302
r/w.34 IPC was framed against the accuseds, which was
read over and explained to them in Telugu. They denied
the same and claimed to be tried.
During the course of trial, the prosecution examined
P.Ws.1 to 16 and marked Exs.P1 to P14 and M.Os.1 to 6.
The defence of the appellants was one of innocence and
false implication. Although, the accuseds did not examine
any defence witness, they exhibited documents marked
Exs.D1 to D5. After closure of prosecution evidence, the
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accuseds were examined under Section 313 Cr.P.C.,
wherein the incriminating materials against them were put
to them but they denied the circumstances and asserted
their innocence.
After hearing both parties, the learned Sessions
Judge came to the conclusion that the ocular evidence is
clinching and is corroborated by the evidence of the
Medical Officers establishing the fact that A-1 poked the
crow bar into the throat of the deceased with the help of
M.O.2, and as a result the victim succumbed to injuries.
Learned Sessions Judge, however, observed that the
offence under Section 302 IPC was not attracted in respect
of A-2 as she did not participate in the murder of the
victim. Accordingly, the appellants were convicted and
sentenced, as above. Aggrieved by the same, the
appellants preferred this appeal under Section 374(2) of
Cr.P.C., on various grounds.
Leaned counsel for the appellants submits motive to
commit the aforesaid offence is proved. No document
relating to supply of electricity or payment of electricity
bills were produced during trial. He submits the incident
occurred in the course of sudden altercation between the
appellants and the deceased and the 1st appellant did not
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have any intention to murder the victim. Hence, his
conviction under Section 302 IPC is unwarranted.
On the other hand, learned Public Prosecutor
appearing for the respondent-State relied on the evidence
of eye witnesses-P.Ws.1 and 2, who are husband and minor daughter of the deceased, as well as the other independent witnesses, P.Ws.4 and 5. He also relied on the evidence of P.Ws.11 and 12, who are Medical Officers, and submitted that the deceased died due to fatal injuries caused by the appellants with the weapon-crowbar and hence, the conviction and sentence imposed on the appellants is justified and does not call for interference.
We have perused the evidence on record particularly the evidence of the eye witnesses. P.Ws.1 and 2 are the husband and minor daughter of the deceased. Both of them deposed that an altercation took place on the date of offence. The 2nd appellant caught hold of a tuft of hair of the deceased and pulled her down on the road and by that time, the 1st appellant picked up a crow bar, which is used to tie the she-buffalo, and poked the throat and mouth of the deceased causing bleeding injuries. Immediately, she was admitted in the hospital and she succumbed to her injuries on the next day. The evidence of the relation 6 witnesses are corroborated by the neighbouring eye- witnesses, P.Ws.4 and 5. They deposed in the course of altercation, the 1st appellant/A-1 arrived at the spot and picked up a crow bar and hit the deceased on her mouth. Ocular version of the aforesaid witnesses is supported by the medical evidence of P.Ws.11 and 12.
P.W.11-Medical Officer attached to the Primary Health Centre, Prathipadu, examined the deceased and found the following injuries:
1. Stab injury of size 5 x 3 x 10cm depth below neck.
2. Face of the right orbit contusion and
3. visible deformity of right arm.
P.W.12-Assistant Professor, Government Hospital, Kakinada, conducted autopsy over the dead body of the deceased. His evidence corroborates the evidence of P.W.11, who treated the victim.
Weapon of offence - crow bar was also seized during the course of evidence. However, Ex.P14-report of Forensic Science Laboratory does not disclose presence of blood stains on the weapon.
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The aforesaid evidence on the record does not leave any doubt in our mind that a sudden altercation took place between the 2nd appellant/A-2 and the deceased whereupon the 2nd appellant pulled the deceased by the tuft of her hair. At that time the 1st appellant/A-1 arrived at the spot and hit the deceased with a crow bar on her throat resulting in her death. However, arguments have been advanced that the 1st appellant/A-1 did not have any intention to commit murder and the incident occurred in the course of a sudden altercation. Hence, the conviction of the 1st appellant/A-1 may be altered to under Section 304(1) IPC instead of Section 302 IPC. This Court finds substance in the submission of learned counsel for the appellants.
The trial Court held that the appellants had no intention to kill the deceased. However, in view of gravity of the injury sustained by the deceased, the trial court came to the conclusion that the case fell within the ambit of Section 302 IPC. No doubt, the 1st appellant had hit the deceased on a vital part of the body i.e., mouth and neck causing extensive injuries and death. However, one cannot lose sight of the fact that the 1st appellant/A-1 had arrived at the spot unarmed and in the course of a sudden 8 altercation between the parties, had picked up the crow bar, which was lying nearby and hit the deceased.
Having regard to the facts and circumstances of the case and in the light of the aforesaid extenuating circumstances, we are of the considered view the act of the 1st appellant/A-1 would fall within the 4th exception under Section 300 IPC and is punishable under Section 304(1) IPC. For the reasons stated above, the conviction against the 1st appellant/A-1 is altered from Section 302 IPC to one of Section 304(1) IPC.
The conviction and sentence imposed on the 1st appellant/Accused No.1 in SC No.599 of 2011 by the learned IV Additional District and Sessions Judge, Kakinada, for the offence punishable under Section 302 IPC is altered to Section 304(1) I.P.C. The sentence imposed upon him is correspondingly altered and he is directed to suffer rigorous imprisonment for a period of ten years and to pay a fine of Rs.500/- and in default, to suffer simple imprisonment for three months, as imposed by the court below.
So far as the conviction and sentence imposed by the court below on the 2nd appellant/Accused No.2 is concerned, her conviction under Section 323 IPC is upheld 9 and she is sentenced to suffer imprisonment for the period already undergone in addition to payment of fine as imposed by the trial court.
Period of detention during investigation/inquiry/trial suffered by the appellants shall be set off under Section 428 Cr.P.C. Upon payment of fine, as aforesaid, bail bonds executed by the 2nd appellant/Accused No.2, if any, shall stand discharged.
Accordingly, the Criminal Appeal is disposed of. Miscellaneous petitions pending if any shall stand closed.
___________________________ JUSTICE JOYMALYA BAGCHI __________________________ JUSTICE A.V.SESHA SAI 06.01.2021 Mjl/* 10 HON'BLE SRI JUSTICE JOYMALYA BAGCHI AND HON'BLE SRI JUSTICE A.V.SESHA SAI CRIMINAL APPEAL No. 422 of 2014 JUDGMENT:
(Per Hon'ble Sri Justice Joymalya Bagchi) (disposed of) 06.01.2021 Mjl/*