HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.901 OF 2009
JUDGMENT:
1. The appellant is convicted for the offence under Section 304-II IPC and sentenced to undergo rigorous imprisonment for a period of three years and also to pay fine of Rs.10,000/-vide judgment in S.C.No.552 of 2008 dated 14.07.2009 passed by the Principal Sessions Judge, Khammam. Aggrieved by the same, present appeal is filed.
2. The case of the prosecution is that the appellant and the deceased are friends. P.W.1 is the father and P.W.2 is the wife of the deceased. According to P.Ws.1 and 2, the deceased was murdered for the reason of the deceased borrowing the amount of Rs.10,000/- from the mother-in-law of the appellant and the same was not repaid by the deceased. Few days prior to the incident, the appellant went to the house of P.W.1 and questioned the deceased regarding the outstanding amount. The deceased promised to repay but never paid the amount. The appellant had, in fact, gone to the house three or four times and also quarreled with the deceased for repayment of the amount.
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3. On 17.12.2007, when P.W.3 and the deceased were at Jagadamba Centre, the appellant contacted the deceased on phone and the deceased refused to answer the call. Then the appellant contacted P.W.3 on phone and asked P.W.3 to handover the phone to the deceased. The deceased disconnected the phone, for which reason, the appellant came to the place where P.W.3 and the deceased were standing and questioned as to why the deceased was not responding to the telephone calls. Then, an altercation took place for which reason, the deceased slapped the appellant and then the appellant and the deceased scuffled with each other and when the deceased fell on the road, the appellant kicked the deceased on his testicles with his knees and also hit the deceased with a stone. The deceased vomited and meanwhile, the appellant fled. When deceased was taken to the hospital, the Doctor declared him as brought dead.
4. Learned counsel for the appellant submits that finding of the learned Sessions Judge is erroneous for the reason of there being several discrepancies in the case of prosecution. P.Ws.1 and 2 are not eye witnesses to the incident and further, the motive of the 3 murder regarding the loan amount being taken was not proved by the prosecution. Further, according to P.W.3, there was one person by name Srinu, who was at the scene and said Srinu was not examined during investigation. In the said circumstances, the prosecution has failed to prove that it was the appellant who had attacked the deceased.
5. On the other hand, the learned Public Prosecutor submits that P.W.4 who is an eye witness and sweet shop owner before which the incident took place, P.W.5 who was present at the centre, P.W.6 who is another independent witness have stated regarding the altercation in between the appellant and the deceased, for which reason, the conviction cannot be interfered with.
6. The incident took place on the road. Even according to the prosecution, there were disputes between the deceased and the appellant. As argued by the learned counsel for the appellant that the motive aspect was not proved cannot be made a ground to set aside the conviction for the reason of there being eye witness account. When there is an eye witness count, the motive part, though projected by the prosecution is of no consequence. 4
7. P.Ws.3 to 6 have stated that there was an altercation in between the appellant and the deceased. P.W.3 specifically stated that when the appellant arrived at the centre, there was heated exchange of words between the deceased and the appellant and it was the deceased who first slapped the appellant and thereafter, both entered into the scuffle. In the said fight, the deceased had fallen down and the appellant kicked the deceased on his testicles. Thereafter, he hit the deceased with a stone.
8. The evidence of P.W.10, autopsy Doctor is that two fractures on the left temporal and fracture of left parietal bone extended up to the above the left ear were found and the cause of death was on account of fractures on the left temporal bone. No injury external or internal were found on the testicles. The Doctor further deposed that the injuries are possible if a person falls on a hard surface. P.Ws.4 to 6, who are the independent witnesses to the altercation in between the deceased and the appellant did not state anything about the appellant hitting the deceased with a stone after he fell down. In the said circumstances, it cannot be conclusively said that the appellant had inflicted injuries on the head of the deceased 5 with a stone. The witnesses P.Ws.4 to 6 were not declared as hostile to the prosecution case and the prosecution has not taken any steps to cross-examine the witnesses to speak about the alleged act of the appellant in hitting the deceased with a stone.
9. In the said circumstances, when the prosecution has failed to prove that the injuries received on the head of the deceased was on account of the appellant hitting with the stone and the possibility of the deceased receiving the said injuries on account of fall on the road cannot be ruled out, benefit of doubt has to be extended to the appellant. Therefore, the conviction under Section 304-II of IPC is set aside. However, the evidence of P.Ws.3 to 6 is consistent regarding the altercation in between the appellant and the deceased, for the said reason, the appellant is liable to be convicted under Section 324 of IPC.
10. The incident is of the year 2007 and according to P.W.3, an altercation started after heated argument in between the deceased and the appellant and it was the deceased who first slapped the appellant leading to an altercation and subsequently, the deceased falling on the road. In the said circumstances, the sentence of 6 imprisonment under Section 324 of IPC is reduced to the period already undergone.
11. In the result, the conviction recorded by the trial Court under Section 304-II of IPC is modified to the extent indicated above.
12. Accordingly, the Criminal Appeal is partly allowed. As a sequel thereto, miscellaneous applications, if any, shall stand closed.
_________________ K.SURENDER, J Date:11.08.2022 kvs 7 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.901 OF 2009 Dated: 11.08.2022 kvs 8