THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY
AND
THE HON'BLE SMT. JUSTICE ANUPAMA CHAKRAVARTHY
CRIMINAL APPEAL No.538 OF 2014
JUDGMENT: (Per Hon'ble Sri Justice A. Venkateshwara Reddy)
This Criminal Appeal is directed against the judgment
dated 17.04.2014 in Sessions Case No.121 of 2013 on the file
of learned II Additional Sessions Judge, Karimnagar at
Jagitial wherein the accused Nos.1 to 5 were found not guilty
for the offences punishable under Sections 447 and 323 of
Indian Penal Code (for short 'IPC') and were acquitted for the
same under Section 235(1) of Criminal Procedure Code (for
short 'Cr.P.C.'). Further, accused Nos.1 to 5 were found
guilty for the offences punishable under Sections 148, 302
read with Section 149 of IPC and convicted under Section
235(2) of Cr.P.C. and were sentenced to undergo simple
imprisonment for a period of one year for the offence
punishable under Section 148 of IPC and also sentenced to
undergo life imprisonment and to pay a fine of Rs.1,000/-
each for the offences punishable under Sections 302 read
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with 149 of IPC and in default of payment of fine, to suffer
simple imprisonment for a period of one month.
2. In brief the prosecution case is that during the
interregnum night of 31.12.2011 and 01.01.2012 at about
11.30 P.M. the deceased Naluvala Narsaiah along with
Naluvala Kistaiah (PW8) and Ashaiah (LW10) was found
sitting before the fire to beat the winter cold on the road near
his house. At that time the Accused Nos.1 and 2 brought
their friend E.Thirupathi on their motor cycles for dropping
him at his house and drove the motor cycle at high speed and
on seeing it, the deceased Naluvala Narsaiah asked them to
drive slowly to avoid accident, since children were wandering
on the street celebrating new year, then accused Nos.1 and 2
picked-up quarrel with him, abused him and left that place.
Again after some time, accused Nos.3 and 4 brought their
friend Chiranjeevi on their motor cycle for dropping him at his
house and after dropping Chiranjeevi, they drove the motor
cycle at high speed, again the deceased questioned them,
then they have quarrelled with the deceased but the quarrel
was subsided due to intervention of Naluvala Ashaiah (LW10)
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and Naluvala Kistaiah (PW8). Thereafter, accused Nos.1 to 5
gathered at the house of accused No.3, consumed some more
liquor, had discussion about the incident and decided to do
away with the lives of de-facto complainant and his father i.e.
the deceased. In furtherance of their plan, accused Nos.1 to 5
formed into unlawful assembly, reached the locality of
deceased, accused No.1 picked up cart peg from a bullock
cart parked near the house of de-facto complainant and on
reaching the house of de-facto complainant, they found the
deceased laying on the cot and they insisted him to call his
son (PW.1) and picked up quarrel with him, started beating
him and upon hearing shouts of his father, PW.1 as well as
other people of the locality came out of their houses, accused
No.1 beat the deceased with cart peg and accused No.2 beat
him with pestle (Rokalibanda). The deceased received injuries
on his head, face and fell down. While the fight was going on
Naluvala Dharmapuri, Naluvala Mahesh and Naluvala
Srinivas (PWs.5, 6 and 7 respectively) arrived there, picked up
quarrel with the accused and there was a free fight between
the accused on one side and PW.1 and PWs.5 to 7 on other
side. In that fight, accused Nos.1 and 2 also sustained
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injuries on their heads. Thereafter, accused Nos.1 to 5 fled
away on their motor cycles. De-facto complainant (PW1)
shifted his injured father (deceased) to Area Hospital, Jagitial
for treatment. But due to his serious condition, as per
medical advice, he was shifted to Spring Hospital,
Karimnagar, he was treated in that hospital till 09.01.2012
and thereafter he was again brought and admitted in the
Government Area Hospital, Jagitial and while undergoing
treatment, succumbed to the injuries at 04.40 P.M. on
09.01.2012
. The police initially registered a case for the offence under Sections 148 and 324 read with Section 149 of IPC and after receipt of death intimation, Section 302 of IPC was added.
3. Investigation discloses that the accused Nos.1 to 5 committed the offences punishable under Sections 148, 302 read with 149 of IPC.
4. From the material available on record, it appears that, after furnishing necessary copies to the accused, as required under Section 207 of Cr.P.C., the case was committed by the learned Magistrate to the Court of Sessions. Learned Sessions AVR,J & GAC,J Crl.A_538_2014 Page 5 of 29 Judge, after registering the case vide SC No.121 of 2013, made over the same to the learned II Additional District and Sessions Judge, Karimnagar at Jagitial. The learned II Additional District and Sessions Judge at Jagitial has framed charges against the accused for the offences punishable under Sections 148, 447, 323, 302 read with 149 of IPC for which all the accused pleaded not guilty and claimed to be tried.
5. During trial, to unfold their case on behalf of prosecution, PWs.1 to 18 were examined, Exs.P1 to P24 and Mos.1 to 4 were marked. After closure of prosecution evidence, accused were examined under Section 313 Cr.P.C with reference to the incriminating oral and documentary evidence, they denied the said evidence in toto stating that a false case is foisted against them. No defence evidence is adduced.
6. The trial Court after hearing both the parties, found accused Nos.1 to 5 guilty for the offences punishable under Sections 148, 302 read with Section 149 of IPC and they were convicted under Section 235(2) of Cr.P.C., sentenced to AVR,J & GAC,J Crl.A_538_2014 Page 6 of 29 undergo simple imprisonment for a period of one year for the offence punishable under Section 148 of IPC, also sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/- each for the offences punishable under Sections 302 read with 149 of IPC and in default of payment of fine, to suffer simple imprisonment for a period of one month. Assailing the same, the appellants/accused Nos.1 to 5 have preferred this appeal.
7. Heard learned counsel for the appellants / accused Nos.1 to 5 and learned Special Public Prosecutor on behalf of learned Public Prosecutor for the State. Perused the material available on record. The detailed submissions made on either side have received due consideration of this Court.
8. The prosecution has in all examined 18 witnesses in support of their case. Among them PW1 is the de-facto complainant and eye witness to the incident, he is son of the deceased. He gave first information report as in Ex.P1 to the police. PW2 is wife of PW1, she did not witness actual occurrence of incident but rushed to the spot immediately after PW1. PW3 is neighbour of PWs.1 and 2 and she is AVR,J & GAC,J Crl.A_538_2014 Page 7 of 29 daughter-in-law of brother of deceased, she is an eye witness to the incident. PW4 is daughter of brother of deceased, she is also an eye witness to the occurrence of incident and she was in the house of PW3 at the time of incident. PW5 is the 4th brother of the deceased and father of PW4, residing in the house opposite to the house of deceased, he is also not an eye witness to the occurrence of incident. PW6 is a circumstantial witness but this witness has spoken through as if he is an eye witness to the occurrence of incident. PW7 is neighbour and circumstantial witness, turned hostile and did not support the prosecution case. PW8 is 3rd brother of the deceased, he has spoken through about the occurrence of the incident, he is an eye witness to the incident. PW9 is the photographer, who obtained photographs of scene of offence as per the instructions of Investigating Officer. PW10 is the doctor, who gave initial treatment to the deceased at Area Hospital, Jagitial and stated that the deceased was brought to the hospital with head injuries and fracture to the scull bone was suspected and he was in unconscious state and advised for shifting to MGM Hospital, Warangal. PWs.11 and 12 are the punch witnesses for observation of scene of offence. PW12 AVR,J & GAC,J Crl.A_538_2014 Page 8 of 29 turned hostile did not support the prosecution case, whereas PW11 has simply stated that he is not aware of the alleged galata, but he has signed on Exs.P10 and P11 at the instance of the police. PW13 is a punch witness for inquest panchanama held over the body of the deceased as in Ex.P13. PW14 is a punch witness for confession of accused and seizure of two motor cycles, cart peg and pestle (Rokalibanda). PW15 is the doctor, who again admitted the deceased in the Area Hospital at Jagitial on 09.01.2012 at 03.35 P.M. when he was brought after treatment in a private hospital at Karimnagar and at that time, the deceased was grasping and completely sick and within one hour after admission, he died on that it was informed to the police. PW16 is the doctor, who conducted autopsy over dead body of deceased. PWs.17 and 18 are the Investigating officers.
9. PW1 stated that on 31.12.2011 accused Nos.1 and 2 came on motor cycle to drop one Thirupathi and at that time his father (deceased) asked them to go slowly on their motor cycle and not to drive at high speed since children were playing in the street on the occasion of new year, on that both AVR,J & GAC,J Crl.A_538_2014 Page 9 of 29 accused Nos.1 and 2 abused the deceased. Again after fifteen minutes accused Nos.3 and 5 came on motor cycle at high speed to drop one Chiranjeevi then also the deceased asked them not to drive the motor cycle at high speed since children were playing. Accordingly, a small quarrel took place, accused Nos.3 and 5 abused the deceased and left that place. Further stated that again at about 01.15 A.M. during the intervening night of 01.01.2012 accused Nos.1 to 5 came to their house and started beating the deceased, they beat him with 'rokalibanda' (pestle) and 'bandi goyyas' (cart pegs) on that he along with PWs.2 to 6 and 8 rescued the deceased and on seeing them the accused ran away. PW1 deposed about individual overt acts of each of the accused stating that accused No.1 beat the deceased on his head, accused No.2 beat on nose and on left side chest of deceased, accused Nos.3 to 5 beat him with cart pegs on the backside and other places on the body. PW1 also stated that immediately he shifted his father to Area Hospital, Jagitial and as per medical advice, in view of serious condition, he was taken to Spring Hospital, Karimnagar and thereafter, he gave report to the police as in Ex.P1. PW1 was examined by police. PW1 stated AVR,J & GAC,J Crl.A_538_2014 Page 10 of 29 that after nine days to his admission at Spring Hospital, Karimnagar, due to serious health conditions, his father was again brought down to Area Hospital at Jagitial and immediately after admission at about 4.00 P.M. or 4.30 P.M. he died.
10. PW1 is subjected to lengthy cross-examination. Throughout the cross-examination, his evidence remained consistent, nothing worth mentioning is elicited in support of defence. He stated that his father may be aged around 50 years at the time of death and he was not suffering with any ailment but has undergone appendicitis operation. He admitted the relationship with PW3, PW4, PWs.6 to 8, LW5 (Naluvala Gangu), LW6 (Naluvala Lachaiah) and LW10 (Naluvala Ashaiah). He stated that he saw the accused beating his father and then he separated the accused from his father and rescued him. He denied the suggestion that accused Nos.3 to 5 were not in the village at the time of incident and due to previous enmity they are falsely implicated. He further denied that his father died due to his ill-ness and taking advantage of his death, a false case is AVR,J & GAC,J Crl.A_538_2014 Page 11 of 29 foisted against the accused. He has also denied the suggestion that accused Nos.1 and 2 also sustained injuries and that they have filed a criminal case against him.
11. PW2 is the wife of PW1, she has supported the entire evidence of PW1 on all material particulars. She noticed accused Nos.1 to 5 beating the deceased with sticks on his face, head and chest and that on seeing them, the accused fled away. She has stated that she was examined by police and her statement under Section 164 of Cr.P.C. was also recorded by the Magistrate. In the cross-examination PW2 stated that she was told that deceased alone was sitting in front of fire on that night, she along with PW1 and others were inside the house during that night and small children were wandering in the street since it was 31st December. She admitted that against PWs.1, 5 and 6 a criminal case was booked and stated that may be the deceased might have beaten the accused Nos.1 and 2 in that night.
12. PW3 supported the entire oral evidence of PWs.1 and 2 and stated that during that night when she was sleeping, she received a phone call from her husband Gangarajam, who AVR,J & GAC,J Crl.A_538_2014 Page 12 of 29 was residing at 'Muskat' while she was talking to him over phone she heard shouts and came out of her house and found the accused beating the deceased and left the scene of offence. Her statement under Section 164 of Cr.P.C. was recorded by the Magistrate and this witness was declared as hostile to the limited extent and she denied the suggestion that she witnessed the actual occurrence of incident and deposing false.
13. PW4 is the daughter of PW.5, at the time of incident she was in the house of PW3, watching television. She supported the evidence of PWs.1 and 2 on all material particulars and stated that on hearing shouts in front of their house she came out, found the accused beating deceased with cart pegs and pestle. The witness also mentioned about the individual overt acts of accused stating that accused No.2 beat on the face of deceased, accused No.1 beat on his head and remaining accused beat on the hands. She clearly stated that she along with PWs.1, 2, 3 and 7 witnessed this incident. As far as motive part is concerned, she explained that since the deceased scolded the accused asking not to drive motor cycle AVR,J & GAC,J Crl.A_538_2014 Page 13 of 29 at high speed they bore grudge against him. Her statement under Section 164 of Cr.P.C. was also recorded by the Magistrate. In the cross-examination she has stated that there were disputes between the accused and deceased and PW1 and there is graveyard litigation among them in the village. She stated that she did not notice accused Nos.1 and 2 sustaining any injuries in the incident, but the police registered a case against PWs.6 and 8. She has clearly stated that blood was oozing out of body of injured, who was in speechless status. She denied the suggestion that her father / PW5 beat the accused Nos.1 and 2 and that a criminal case was also registered against her father and at the instance of her father she is deposing false.
14. PW5 is father of PW4 and that he is the 4th brother of deceased and residing in the house opposite to the house of the deceased. This witness has supported the evidence of PWs.1 to 4 in all material particulars. In the cross- examination this witness stated that other than the relatives of deceased no other people gathered while the accused beating the deceased and for about 15 minutes the accused AVR,J & GAC,J Crl.A_538_2014 Page 14 of 29 beat the deceased. He stated that on receiving a phone call of PW4 he woke up and saw the accused fleeing away from the scene of offence.
15. PW6 is a neighbour of the deceased, though he is cited as circumstantial witness he has spoken through as an eye witness to the incident. He has stated that the accused came and beat his senior paternal uncle (deceased Narsaiah) the accused were holding rokali banda (pestle) and bandigoyyas (cart pegs) and that accused Nos.1 and 2 beat on the face of the deceased and when he fell down, the accused beat him on his chest. PW6 stated that along with PWs.1 to 5 he witnessed the incident. In cross-examination, his entire evidence remained consistent. However, it is submitted by him that a criminal case is registered and pending against him and the deceased also beat accused No.1 and that both accused Nos.1 and 2 were referred to hospital by the police for the injuries sustained by them.
16. PW7 is a neighbour of the deceased and circumstantial witness, this witness turned hostile and did not support the case of prosecution. He stated that PW1 questioned the AVR,J & GAC,J Crl.A_538_2014 Page 15 of 29 accused as to why they are showing their 'rubabu' and thereafter, he was informed that the accused consumed liquor and beat the deceased, who was shifted to hospital. Though he was cross-examined by learned Public Prosecutor, nothing is elicited to disbelieve his evidence.
17. PW8 is third brother of deceased. He also witnessed the incident. He supported the evidence of PWs.1 to 6 on all material particulars. However, in the cross-examination he has stated that he was inside the house and after midnight he came out of the house.
18. PW9 is the photographer, he obtained photographs Exs.P5 to P8 and gave them to the police.
19. PW10 is the doctor deposed that on 01.01.2012 the deceased was brought to the hospital with injuries on his head, fracture to skull bone was suspected, he was in unconscious state and was advised to shift to MGM Hospital, Warangal. Ex.P9 is O.P.Ticket. In the cross-examination he has stated that the deceased was not admitted as in-patient, but he was referred to MGM Hospital, Warangal for better AVR,J & GAC,J Crl.A_538_2014 Page 16 of 29 treatment. He has also stated that in the same night accused Nos.1 and 2 also came to the hospital with injuries for treatment, they were admitted in the hospital.
20. PWs.11 and 12 are the witnesses for observation of scene of offence panchanama. PW12 turned hostile, did not support the case of prosecution and whereas, PW11 has stated that at the instance of the police, he signed on Exs.P10 and P11 along with PW.12.
21. PW13 is a witness for Ex.P.13 inquest panchanama conducted over the dead body of deceased. This witness is not at all cross-examined by the learned defence counsel. Thus, the oral evidence of PW13 and contents of Ex.P13 remained uncontroverted and this witness has clearly stated that he noticed injuries over the head and chest of the deceased and that contents of Ex.P13 were read over explained to him.
22. PW14 is a witness for confession of accused and seizure of MOs.1 to 4. This witness stated that at the instance of the police he enquired accused Nos.1 and 2 and that they AVR,J & GAC,J Crl.A_538_2014 Page 17 of 29 confessed about concealment of stick and pestle on the backside of house of Ramesh stating that it was used for committing the offence. Accordingly, the stick and pestle were seized, they are Mos.1 and 2 respectively. PW14 further stated that pursuant to the confession of the accused MOs.3 and 4 motor cycles were also seized. Though this witness was cross-examined at length on behalf of accused, nothing is elicited to disbelieve his evidence.
23. PW15 is the doctor, who admitted the deceased again in the Area Hospital at Jagitial on 09.01.2012 and stated that by 05.00 P.M. the deceased died and it was informed to the police under Ex.P17. In the cross-examination he has stated that he did not notice any external injuries on the body of the deceased as there was no time to observe the same.
24. PW16 is the doctor, who conducted autopsy over the dead body of the deceased. She has stated that there were multiple small abrasions over both feet, over left wrist, over left side of the chest, over nose and there were sutured wounds on the right upper eye lid, over the forehead and there was a fracture on the frontal bone and the cause of AVR,J & GAC,J Crl.A_538_2014 Page 18 of 29 death is head injury and shock due to haemorrhage. However, the doctor has admitted that death of a person is possible with the injuries noted in Ex.P18 if such a person falls on a blunt object or on hard surface in intoxicated condition.
25. PWs.17 and 18 are the Investigating Officers. PW17 has registered the case on receipt of Ex.P1 from PW1 in crime No.1 of 2012, issued FIR under Ex.P20, recorded the statement of PW1, visited the scene of offence, prepared crime details as in Ex.P11 and rough sketch as in Ex.P21, secured the presence of witnesses, recorded the statements while the investigation was in progress on 09.01.2012, received intimation under Ex.P17 about death of deceased, altered the Section of law by adding Section 302 of IPC. In the cross- examination the witness admitted that accused Nos.1 and 2 also gave a report on 01.01.2012 and a case was registered at 05.30 P.M. on that day, and explained that one Head Constable issued FIR and major part of the investigation in that crime was conducted by the said Head Constable only. He further stated that he is unable to recollect about staging AVR,J & GAC,J Crl.A_538_2014 Page 19 of 29 of dharna in front of Police Station, Jagitial Rural by the people of Tippannapet in relation to the dispute of burial ground. He also admitted that in the counter case, he has filed charge-sheet mentioning the reason as due to land dispute and also stated that PWs.1, 5, 6 and 7 were charge- sheeted in the counter case and the deceased could not be charge-sheeted in view of his death.
26. PW18 is Investigating Officer, who received investigation from PW17, recorded the statements of other witnesses, gave requisition for conducting post-mortem examination, effected the arrest of the accused on 16.01.2011, secured the presence of punch witnesses, recorded the confession of the accused leading to recovery and accordingly, MOs.1 to 4 were seized at the instance of the accused. Mos.1 and 2 were sent to FSL for examination. He also gave requisition to the learned Magistrate at Metpalli for recording statements of PWs.2 to 5 under Section 164 of Cr.P.C. and after completion of investigation, he laid charge-sheet. In the cross- examination the witness stated that as per his investigation, the reason for the incident is that the deceased questioned AVR,J & GAC,J Crl.A_538_2014 Page 20 of 29 the accused why they were riding motor cycles at high speed during night hours of 31.12.2011. He was cross-examined with reference to scene of offence, confession panchanama of accused leading to recovery of MOs.1 and 2 and two motor cycles as in MOs.3 and 4 and his entire evidence withstood the cross-examination, nothing is elicited to discredit this witness.
27. On a careful appreciation of entire evidence, as discussed above, it is crystal clear that the accused have not disputed much over the homicidal death of the deceased and in-fact it could be inferred from the suggestions given by learned defence counsel to the doctor that such death was on account of sustaining injuries when the deceased fell down in intoxicated condition due to old age and also due to ill-health but there is no record to show that either the deceased was suffering with any of the old age ailments or that he was under intoxicated condition at the time of incident. On the other hand, there is ample evidence on record to show that when the accused were driving motor cycle at high speed during the intervening night of 31.12.2011 and 01.01.2012 AVR,J & GAC,J Crl.A_538_2014 Page 21 of 29 the deceased advised them not to drive the vehicle at high speed since children were wandering on the road/street, later all the accused gathered at the house of accused No.3, consumed some more liquor, came to the house of deceased, questioned him and also asked him about PW1 and beat the deceased with cart pegs and pestle. Though the doctor (PW16) has answered positively stating that it is possible to receive such ante-mortem injuries, as mentioned in Ex.P18, if a person falls on hard surface in intoxicated condition, there is no evidence to that effect either elicited in the cross- examination of prosecution witnesses or by examining any defence witnesses. Be it stated that even while answering the questions relating to incriminating evidence found against them under Section 313 Cr.P.C., the accused have totally denied and did not offer any explanation nor explained the occurrence of the incident in tune with the suggestions given to PW16. Thus, a feeble and unsuccessful attempt was made by the defence to show that the deceased sustained injuries by a fall on hard surface in intoxicated condition and that such injuries were not inflected by any of the accused. In view of consistent oral evidence of eyewitnesses as to the AVR,J & GAC,J Crl.A_538_2014 Page 22 of 29 manner of occurrence of the incident, I do not find any weight or merit in the suggestion given to PW16 and her answering in positive. Therefore, without any second thought it can be said that the defence of the accused is nothing but a make believe defence without any factual basis.
28. Doctor PW16 who conducted autopsy over the dead body has opined that the death is on account of head injury and shock due to haemorrhage. The deceased was admitted in hospital initially on 01.01.2012 and as per the medical advice for better treatment he was shifted to Spring Hospital, Karimnagar, treated in that hospital till 09.01.2012, finally, he was again shifted to Area Hospital, Karimnagar and immediately after shifting by 05.00 P.M. he died. Thus, the homicidal death of the deceased, cause of death and nature of injuries sustained is established by the prosecution with cogent and consistent oral and medical evidence and it is not seriously disputed by the accused.
29. The narration of eye witnesses i.e. PWs.1 to 6 and 8 as to the manner of occurrence of the incident, individual overt acts of the accused, remained consistent throughout their AVR,J & GAC,J Crl.A_538_2014 Page 23 of 29 cross-examination. However, some of the witnesses have categorically admitted that a counter case is also registered, accused Nos.1 and 2 were also referred to the hospital during that night. PW10/doctor has categorically stated that accused Nos.1 and 2 were admitted in the hospital and they were given treatment. Similarly, first Investigating Officer / PW17 has stated that Head Constable has conducted major portion of the investigation in the counter case but he has filed the charge-sheet mentioning that the incident occurred due to land dispute. PW17 categorically stated that in the counter case, he has charge-sheeted against PWs.1, 5, 6 and 7 and he could not charge-sheet the deceased as he expired. This evidence of PW10 and 17 coupled with admissions of eye witnesses as discussed above would establish that during the intervening night of 31.12.2011 and 01.01.2012 almost there was a free fight between the accused on one side and PWs.1, 5, 6, 7 and the deceased on the other side and in that incident, the accused Nos.1 and 2 have also sustained injuries, they were referred by the police to the Area Hospital, Jagitial.
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30. The learned counsel for the appellants strenuously contends that though the plea of the accused is one of total denial, there is ample evidence on record to show that there was free fight at the time of the occurrence of incident, accused Nos.1 and 2 also sustained injuries, they were referred to the Area Hospital, Jagitial and a counter case was also registered and in-fact PW17 is the Investigating Officer in the counter case and he has charge-sheeted PWs.1 and 5 to 7 and he could not charge-sheet the deceased because of his death, this evidence available on record would establish that some other incident also occurred and that the accused have no intention to kill the deceased and that the offence punishable under Section 302 of IPC is not made out and at the most the offence may fall under Section 304 part II of IPC.
31. Reverting back to the facts of the case on hand, it may be stated that the incident occurred during the intervening night of 31.12.2011 and 01.01.2012 at about 01:30 A.M. All the accused have further consumed liquor at the house of accused No.3 reached the house of deceased, found him taking rest on a cot in front of the house, enquired about AVR,J & GAC,J Crl.A_538_2014 Page 25 of 29 PW1, beat him indiscriminately with cart-peg and pestle. But the MOs.1 and 2 sticks were only seized at the instance of accused Nos.1 and 2 respectively and no such pestle (Rokali banda) was seized. Further prior to this incident there was heated exchange of words but in the heat of passion, the accused did not use any sharp or cutting weapon, the only weapons seized are two sticks (MOs.1 and 2). The doctor PW10, who initially treated the deceased suspected fracture of skull bone and as the deceased was in unconscious state, advised to shift him to MGM Hospital, whereas he was shifted to a private hospital at Karimnagar and no such record of treatment at private hospital is filed and exhibited and the doctors who treated him in the private hospital at Karimnagar from 01.01.2012 to 09.01.2012 are neither cited as witness nor examined by the prosecution. PW16 the doctor who conducted autopsy has spoken through about the nature of injuries and opined that the cause of death is head injury and shock due to haemorrhage. Thus though the incident occurred and the injuries were caused to the deceased during the intervening night of 31.12.2011 and 01.01.2012, and he was given treatment for nine days in a private hospital, no AVR,J & GAC,J Crl.A_538_2014 Page 26 of 29 such medical evidence, oral or documentary is produced by the prosecution. However, in our considered opinion, the oral evidence of PWs.1 to 6 and 8 coupled with the evidence of doctors PW10 and PW16 is sufficient to establish that the accused have caused indiscriminate assault and some of the injuries proved to be fatal. By the rashness of their acts the accused must be treated to be fully aware of the consequences of their acts including the possible death as such Section 304 Part I would clearly cover the acts of the accused and not either Section 304 Part II or Section 302 of IPC.
32. In this context, we may profitably refer to the judgment of the Hon'ble Supreme Court in State of Rajasthan Vs. Punaram1 wherein on identical facts it was held that the High Court erred in applying Section 304 Part II of the IPC and that the facts proved would establish the commission of offence under Section 304 Part I of the IPC, where the accused persons caused indiscriminate assault and some of the injuries proved fatal. By the rashness of their acts, the 1 2017 Crl.J.1184 SC AVR,J & GAC,J Crl.A_538_2014 Page 27 of 29 accused persons must be treated to be fully in knowing the consequences of their acts including possible death. Accordingly the Apex Court set aside the judgment and order under appeal and convicted the accused for the offence under Section 304 Part I of the IPC.
33. Therefore even accepting the prosecution story in totality as discussed above as the injuries were not caused on vital parts of the body except head injury, only MOs.1 and 2 sticks (weapons) were seized and the deceased died after 9 days of occurrence of the incident and also considering the fact that a counter case was also registered, wherein the accused Nos.1 and 2 also received injuries and there was almost a free fight either at the time of the incident or immediately after this incident, PWs. 1 and 5 to 7 were also charge sheeted in the counter case and the investigation officer PW.17 deposed that the deceased could not be charge sheeted as he died, it cannot be said that the accused had the intention to murder the deceased and as such, the offence committed and proved would amount to culpable homicide AVR,J & GAC,J Crl.A_538_2014 Page 28 of 29 not amounting to murder punishable under Section 304, Part I of the IPC.
34. Thus, when the facts of the present case are tested on the touchstone of the principles laid by the Hon'ble Supreme Court in the above decision, the answer is in the positive, the trial Court has erred in finding the appellants/accused guilty for the offence punishable under Section 302 of the IPC and it is a fit case to alter the conviction of the appellants/accused from the offence under Section 302 of IPC to under Section 304 Part-I of IPC. Accordingly, the conviction and sentence of the appellants/accused Nos.1 to 5 is hereby altered from Section 302 of IPC to Section 304 Part-I of IPC.
35. In the result, the Criminal Appeal is partly allowed and to meet the ends of justice the conviction of appellants/ accused Nos.1 to 5 is altered from the offence punishable under Section 302 of IPC to the offence punishable under Section 304 part I read with Section 149 of IPC and the sentence of life imprisonment is altered and modified to the sentence of rigorous imprisonment for the period already undergone since they are in jail from the date of judgment i.e. AVR,J & GAC,J Crl.A_538_2014 Page 29 of 29 from 17.04.2014 in SC No.121 of 2013 and to pay a fine of Rs.1,000/- (Rupees one thousand only) each, in default to suffer simple imprisonment for one month each. The conviction and sentence of the accused for the offence punishable under Section 148 of IPC is sustained. If the appellants/accused persons had already paid the said fine amount as imposed by the trial Court, they shall be set at liberty forthwith.
36. The appeal is accordingly disposed of and the appellants/accused Nos.1 to 5 shall be set at liberty forthwith if they had already paid fine amount as indicated above. The MO Nos.1 to 4 shall be disposed as ordered by the trial Court.
__________________________________ A. VENKATESHWARA REDDY _________________________________ G.ANUPAMA CHAKRAVARTHY, J Date :16.09.2022 Abb.