THE HONOURABLE DR. JUSTICE G. RADHA RANI
AND
THE HONOURABLE SRI JUSTICE SAMBASIVARAO NAIDU
Criminal Appeal No.970 of 2013
JUDGMENT : (per Hon'ble Dr. Justice G. Radha Rani)
This Criminal Appeal is preferred by the appellant / accused
against the judgment dated 04.11.2013 passed in Sessions Case No.624 of
2010 on the file of the III Additional Metropolitan Sessions Judge, at
Hyderabad, convicting the accused under Section 235(2) of Criminal
Procedure Code, 1973 for the offence under Section 302 of I.P.C. and
sentencing the appellant / accused to undergo life imprisonment and also
to pay a fine of Rs.1,000/-, in default of payment of fine, to undergo
Simple Imprisonment for three (03) months.
2. The case of the prosecution, as per the charge-sheet filed by the
Inspector of Police, P.S. Saidabad, was that on 25.02.2010 at about 04:30
P.M., the Inspector of Police received a telephonic message from
P.C.3259 of P.S. Saidabad stating that a suspicious death occurred at
Singareni Colony huts upon which the Inspector of Police made a
General Diary entry and proceeded to the scene and recorded the
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statement of the brother of the deceased, and sent it to the Police Station
with an endorsement to the Station House Officer to register a case under
Section 302 of I.P.C., and sent back the case file to him for further
investigation.
3. As per the statement of the complainant (brother of the deceased),
his brother was an auto-driver and hired an auto from one Hun Singh @
Michael; his brother went along with the auto and had not returned for
eight days; on 24.02.2010 at about 08:00 P.M. when his brother returned
to his hut, the owner of the auto, viz., Hun Singh @ Michael came there,
picked up quarrel with his brother and beat him black and blue, due to
which his brother could not take dinner in the night; on the next day
morning also, Hun Singh @ Michael repeated the same by fisting his
brother, viz., Pathlavth Soumya Naik @ Soumya, and also kicked him on
his stomach due to which his brother died.
4. The complainant further stated that at the time of the incident, he
was at Devarakonda to attend his sister's operation, and came to know
about the same through his brother-in-law, viz., Swami, and returned to
the Singareni Colony huts along with his relatives whereby he noticed his
brother's dead body lying in front of his hut; and on observation he
noticed a number of injuries on his forehead, nose, both cheeks, knees,
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back, stomach and swollen injuries all over the body; upon enquiry with
his daughter, she stated about Hun Singh @ Michael beating Sowmya
Naik on 24.02.2010 and on 25.02.2010. Basing on the statement, the
H.C.No.5116 of P.S. Saidabad, Hyderabad registered a case in Crime
No.56 of 2010 under Section 302 of I.P.C. and sent the case file to the
Inspector of Police for further investigation. The Inspector of Police
secured the mediators and conducted scene of offence-cum-seizure
panchnama, and seized a pestle from the scene of offence; he also took
the photographs of the dead body and the scene of offence, and sent the
body to the mortuary room at Osmania General Hospital. The Inspector
of Police secured the presence of the other witnesses and recorded their
statements, visited the mortuary on 26.02.2010 at Osmania General
Hospital and conducted inquest panchnama over the body of the deceased
in the presence of the mediators and sent the body for Post-Mortem
Examination. After Post-Mortem Examination, he handed over the body
of the deceased to the blood relatives for performing last rites. On
credible information, he apprehended the accused, viz., Hun Singh @
Michael on 01.03.2010 at 10:00 P.M. On interrogation, the accused
confessed the crime. The Inspector of Police arrested the said Hun Singh
@ Michael, and produced him before the Court for judicial custody on
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02.03.2010, and after collecting the Forensic Science Laboratory and
Post-Mortem Examination reports which would disclose that the cause of
death of the deceased was due to head injury associated with blunt injury
abdomen, filed charge-sheet against the accused under Section 302 of
Indian Penal Code, 1860 (for short, 'the I.P.C.').
5. The case was taken cognizance by the VII Additional Chief
Metropolitan Magistrate, Hyderabad for the offence under Section 302 of
I.P.C., and after furnishing the copies of documents to the accused,
committed the matter to the Metropolitan Sessions Judge, Hyderabad.
The case was assigned to the III Additional Metropolitan Sessions Judge,
Hyderabad. The III Additional Metropolitan Sessions Judge, Hyderabad
framed charge under Section 302 of I.P.C. The accused pleaded not
guilty.
6. During the course of trial, the prosecution examined PWs.1 to 11,
and got marked Exs.P.1 to P.7 and MO.1. No defense evidence was
adduced by the accused.
7. On considering the oral and documentary evidence on record, the
Trial Court found the accused guilty for the offence under Section 302 of
I.P.C., and sentenced him to undergo imprisonment for life and to pay a
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fine amount of Rs.1,000/-; in default of payment of fine amount, to
undergo simple imprisonment for three (03) months.
8. Aggrieved by the said conviction and sentence inflicted by the
Trial Court, the appellant / accused preferred the present Criminal Appeal
contending that the trial Court erred in relying upon the highly interested
and discrepant testimonies of PWs.1 and 5; the trial Court failed to see
that PWs.2 and 3 were not eye-witnesses to the incident, and their
evidence would only show that they witnessed the galata between the
accused and the deceased only on the previous day of the incident; the
evidence of PW.5 would show that the accused beat the deceased with
hands; the medical evidence did not fit into the prosecution case; in any
event, the offence would not fall under Section 302 of I.P.C. as
admittedly the accused was unarmed and had no intention to cause the
death of the deceased; the weapon, i.e., pestle, was also not recovered at
the instance of the accused, but was seized from the scene of offence
which would indicate that it was planted; and prayed this Court to allow
the appeal.
9. Heard the learned counsel for the appellant and the learned Public
Prosecutor for the respondent.
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10. Learned counsel for the appellant contended that there was an abnormal delay in giving report to the Police, while the incident was alleged to have taken place on 24.02.2010 at about 08:00 P.M., the report was given at 06:00 P.M. on 25.02.2010; therefore, there was a delay of twenty-two (22) hours in giving the report; no explanation was given by the prosecution for the said delay; as per the prosecution case, PWs.2 and 3 were the eye-witnesses to the incident; PW.2 was the daughter of brother of the deceased; PW.3 was a neighbour and also related to the deceased; though the incident took place on 24.02.2010 at about 08:00 P.M., the eye-witnesses PWs.2 and 3 kept quiet and did not give any report to the Police nor informed anybody, particularly to the family members of the deceased; the conduct of PWs.2 and 3 was abnormal and unnatural in not giving report in the Police Station, and also in not taking the deceased to the hospital and not informing anybody; the incident occurred in a locality where many people would gather, but as no one had even taken the deceased to the hospital, there was any amount of doubt with regard to the genesis of the incident; there was also a police out-post in the colony and there was regular picketing in the colony round the clock; PWs.2 and 3 or the persons gathered there, ought to have informed the incident to the police; in the absence of giving information to the ::7:: Dr.GRR,J & SSRN,J crla_970_2013 police, it could be inferred that the incident had not taken place in the manner as stated by PWs.2 and 3; there were material contradictions in the evidence of witnesses with regard to use of pestle and beating the deceased on the following day.
11. Learned counsel for the appellant further contended that PWs.2 and 3 did not state in their 161 statements that the accused beat the deceased on the following day; PW.1 had not stated about using of the pestle; the use of pestle was also not found in Ex.P.1-Report; PW.3 did not state in his 161 Statement that the accused beat the deceased with pestle; therefore, due to these omissions, the evidence of PWs.2 and 3 was not trustworthy to sustain a conviction; even assuming that the said evidence was acceptable, the incident took place in a spur of moment on a trivial issue and there was a galata preceding the incident; there was no inimical relations between the accused and the deceased to believe that the accused had an intention to kill the deceased; the conviction under Section 302 of I.P.C. would not sustain and the offence might fall under Section 304 Part-II of I.P.C.; and prayed this Court to allow the Criminal Appeal by setting aside the conviction and sentence passed against the appellant.
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12. On the other hand, the learned Public Prosecutor appearing on behalf of the respondent, supported the judgment of the trial Court and stated that the evidence of the witnesses was cogent and consistent; the accused beating the deceased on the next day also would prove his criminal intention to cause the death of the deceased; and prayed this Court to uphold the conviction and sentence of the accused as passed by the trial Court under Section 302 of I.P.C.
13. The charge that was framed against the accused reads as under :
CHARGE It is alleged that you own an auto-rickshaw and hired it to Pathalazvath Soumya Naik and that on 24.02.2010 at 08:00 P.M. at his house in Manyavaripalli Huts, Singareni Colony Huts, Saidabad, Hyderabad you quarreled with him and fisted him and kicked him all over the body and with a pestle / pounder caused injuries on his head and thereafter on 25.02.2010 at 02:00 P.M. at the same place you again caught him and knowing that he is under severe injuries you again hit him on his stomach and all over the body and that resulted in his spot death and that you did all this with a view to kill him and thus you committed murder punishable under Section 302 I.P.C. and within my cognizance.
14. PW.1 is the complainant and brother of the deceased. His evidence is hearsay, as he stated that he was out-of-station at the time of the incident. He stated that he along with his wife, went to Devarakonda to attend the surgery of his elder sister. When he telephoned to his brother-
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in-law, viz., Swami, the latter told him that the accused beat his deceased brother at about 08:00 P.M. at the hut of the deceased. On 25.02.2010, at about 02:00 P.M., one Shankar told him that the accused killed his brother. On the same day, at about 06:00 P.M., he came to the house of the deceased and found the dead body of the deceased, noticed injuries all over the body of the deceased, inquired with his daughter (Kum. Chitti) as to what happened, and she narrated him about the entire incident and later he gave complaint to the Police, Saidabad. The said complaint was marked as Ex.P.1.
15. PWs.2 and 3 were shown as eye-witnesses to the incident. PW.2 was Kum. Chitti (daughter of PW.1). She was aged around 12 years at the time of the incident. Her evidence was recorded on 23.08.2013 and she was shown as aged 15 years by that time. She stated that on 24.02.2010, at about 08:00 P.M., her uncle by name Sowmya came to the house; his house was situated by the side of their house in Singareni Colony; at that time, the accused came to the house of the deceased; the deceased took the auto of the accused for rent and he was due some amount towards rent to the accused; some galata took place between them with regard to payment of auto rent to the accused; then the accused beat the deceased with hands, and later he beat with a pestle on his ::10:: Dr.GRR,J & SSRN,J crla_970_2013 stomach, head and ankles, and again the accused beat the deceased on his cheek with his chappal; blood oozed from the ears of the deceased; then the deceased fell down; immediately after beating the deceased, the accused left the place. On the next day morning, their neighbour by name Smt. Vuri gave some "ganji" to the deceased, but the deceased could not drink it and vomited; on the next day, i.e., on 25.02.2010, again the accused came to the deceased at about 08:00 A.M. abused him in filthy language and beat the deceased again with a pestle and demanded the accused for the auto rent; the accused also beat the deceased on the cheek of the deceased with chappal; and on the same day at about 02:00 P.M., they found the deceased dead. PW.2 further stated that LWs.3 and 4 witnessed the incident.
16. In the cross-examination, PW.2 denied that she had not stated to the police about the accused beating the deceased with pestle and also beating him on the cheek with chappal and that blood oozed from the ears of the deceased, and also about Smt. Vuri giving "Ganji" to the deceased, and that he could not drink it and vomited; and she also denied that she had not stated to the police that on the next day, the accused again beat the deceased with pestle and also beat him on his cheek with chappal.
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17. PW.3, the other eye-witness to the incident, stated that his house was adjacent to the house of PWs.1 and 2; the house of the deceased was also situated by the side of their houses in Singareni Colony, Saidabad, Hyderabad; the accused was an auto-driver; the deceased was running the auto of the accused by taking it on rent; the deceased became due of one week auto rental to the accused; on 24.02.2010, at about 07:00 P.M. while he was at his house, the accused came to the house of the deceased, questioned him for non-payment of auto rent and beat him with hands and legs, then the accused also beat the deceased with pestle on his head, legs and other parts of the body and went away; the neighbours witnessed the incident; PW.2 and LW.4 (Islavath Ramesh) also witnessed the incident. He stated that on the next day morning, the accused came to the deceased and beat him again; later he came to know about the death of the deceased at about 02:00 P.M. on 25.02.2010.
18. In the cross-examination, PW.3 stated that the deceased was related to him as his co-brother by courtesy and stated that he had not lodged any complaint to the police; he denied the suggestion that he had not stated to the police that the accused beat the deceased with a pestle. He also admitted that the P.S. Saidabad was at a distance of 2 kms. from their huts.
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19. Thus, both the above witnesses stated about the accused beating the deceased on 24.02.2010 even as well as on 25.02.2010 in the morning hours. Both these witnesses stated about the accused questioning the deceased for auto rentals as he was due one week auto rents, and beat him not only with hands but also with a pestle on his head, legs, stomach and other parts of the body.
20. While PW.2 stated that the accused, on the next day morning, also beat the deceased with a pestle in the stomach, PW.3 had not stated about using a pestle on the next day; and he only stated that the accused came to the house of the deceased and beat him again.
21. The wife of the deceased was examined as PW.4. She stated that she was not present on the date of the incident. She went to her parents' house at Mannevaripalli, Devarakonda. PW.1 telephoned to her and informed about the death of her husband. She immediately rushed to the Singareni Colony and found the dead body of her deceased-husband with injuries all over the body and she came to know from PWs.2 and 3 that the accused beat her husband due to which he died.
22. PW.5 was shown as a circumstantial witness, who spoke about the incident. He stated that on 24.02.2010, between 08.00 P.M. and 09:00 ::13:: Dr.GRR,J & SSRN,J crla_970_2013 P.M., he saw the deceased Sowmya lying on the cot; he gave him drinking water, but he could not drink it and vomited it. On enquiry with his wife, she told him that the accused beat the deceased. He stated that on the next day morning again the accused came and beat the deceased with his hands, and at about 02:00 P.M. Sowmya died.
23. Thus, though this witness stated that he had not witnessed the incident on 24.02.2010 in the evening hours and came to know about the same through his wife, but stated that he witnessed the incident on 25.02.2010 in the morning hours and stated about the accused beating the deceased with his hands.
24. PW.6 was the panch witness for the scene of offence - cum - seizure panchnama. He stated that on 25.02.2010, at about 06:30 P.M., police called him to the scene of offence; the police prepared the scene of offence - cum - seizure panchnama and seized the pestle from the scene of offence in their presence. The pestle was marked as MO.1. The scene of observation panchnama was marked as Ex.P.2 and the rough sketch was marked as Ex.P.3. He stated that he along with other witness, viz., Anjaiah, signed on Exs.P.2 and P.3. Nothing was elicited in his cross- examination to disbelieve his evidence.
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25. PW.7 was the Doctor who conducted Post-Mortem Examination on the body of the deceased. She stated that on 26.02.2010, at 12:20 P.M., she received requisition to conduct Post-Mortem Examination over the body of the deceased, Pathlavath Soumya Naik @ Sowmya, aged 29 years; and noted the injuries in the Post-Mortem report. She also stated that as per her opinion, the cause of death of the deceased, to the best of her knowledge and belief, was head injury associated with blunt injury abdomen. She sent the viscera to the Forensic Science Laboratory; and on receipt of the Forensic Science Laboratory report, issued the Post- Mortem Report which was marked as Ex.P.4. In her cross-examination, she stated that injury Nos.9 to 14 mentioned in Ex.P.4, were responsible for causing death of the deceased.
26. As seen from Ex.P.4, injury nos.1 to 8 were abrasions and injury nos.9 to 14 were contusions. She noted a scalp contusion on right parieto occipital area of head, diffused subdural hemorrhages over cerebrum and cerebellum, diffused omental contusions, liver contusion, both kidneys and adrenals contused, and found 800 cc of blood in peritoneal cavity.
27. All the above injuries would indicate that the deceased was beaten with a blunt weapon due to which all the internal organs of the body, like ::15:: Dr.GRR,J & SSRN,J crla_970_2013 liver, kidneys got contused and he also sustained head injuries; and the cause of death was due to the head injury and blunt injury abdomen.
28. PW.8 was the witness for inquest panchnama. He stated that police conducted inquest over the body of the deceased in his presence at Mortuary of Osmania General Hospital and he opined that the deceased died due to the said injuries. The inquest report was marked as Ex.P.5 through the said witness.
29. PW.9 was the Head Constable (No.5116) who registered the case basing on the statement of PW.1, and issued F.I.R.
30. PW.10 was the Sub-Inspector of Police, who stated that he drafted the statement of PW.1 and also recorded the 161 Cr.P.C. statement of witnesses and also drafted the panchnama as per the instructions of the Inspector of Police, as the Inspector was not in a position to write by himself at that time.
31. PW.11 was the Inspector of Police, Saidabad P.S. at the relevant time, and he stated about the investigation conducted by him. In his cross-examination, he admitted the omissions extracted from the statements of PWs.2 to 5.
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32. As seen from the evidence of the witnesses, there was nothing extracted in their cross-examination to discredit their testimonies, except extracting some material omissions. Even if the said portions of the statements were omitted from their evidence, the evidence of PWs.2 and 3 is consistent with regard to the accused beating the deceased on 24.02.2010 between 07:00 P.M. to 08:00 P.M. and on 25.02.2010 in the morning hours. Though there was delay in lodging the report to the police, it could be seen that the incident occurred in a slum locality. The witnesses were illiterates. PW.2 is a minor child aged about 12 years; and the other witnesses were neighbours, who might not have taken the incident seriously so as to report it to the police. As the deceased was beaten by the accused with a pestle, there were no external bleeding injuries on the body of the deceased. The major injuries sustained by the deceased were contusions which caused internal bleeding rather than external bleeding. Hence, the witnesses might not have suspected the seriousness of the injuries. The close relatives of the deceased, i.e., his wife and brother, not being present at the time of the incident, also might have caused the delay in reporting the incident to the police. As such, the delay itself could not be a reason to suspect the credibility of the evidence ::17:: Dr.GRR,J & SSRN,J crla_970_2013 of the witnesses. Admittedly, there was no enmity between the witnesses to implicate the accused falsely in the case.
33. As seen from the judgment of the Hon'ble Apex Court, as relied upon by learned counsel for the appellant in Thulia Kali vs. State of Tamil Nadu1, the first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them, as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of after-thought. It is therefore essential that the delay in lodging the report should be satisfactorily explained.
34. In the case on hand, the evidence of witnesses would not disclose that the first information report was a result of any embellishment or a 1 1973 AIR 501 ::18:: Dr.GRR,J & SSRN,J crla_970_2013 creature of after-thought, or it was a result of deliberation and consultation.
35. As seen from the cross-examination of the witnesses, the only suggestion given to the witnesses is that the accused did not beat the deceased but he fell down because of heavy drinking. The evidence of the doctor who conducted Post-Mortem Examination would disclose that the cause of death was a result of the blunt injuries sustained by the deceased on his head and abdomen, but not due to any accident or fall. It was also not suggested to the doctor that the deceased was drunk, and the injuries sustained by him were the result of his fall. The Post-Mortem Examination report, marked as Ex.P.4, would not disclose the internal organs smelling any alcohol. It was specifically stated that no specific smell was felt at stomach. As such, the defense taken by the appellant has no basis.
36. The other contention raised by the learned counsel for the appellant was that there were material omissions in the evidence of the witnesses, viz., PWs.2, 3 and 5, as stated above. Even if these omissions are excluded, the evidence of the witnesses is consistent with regard to the manner of the incident. The evidence of PWs.2 and 3 is consistent with regard to the accused beating the deceased with a pestle on his stomach, ::19:: Dr.GRR,J & SSRN,J crla_970_2013 head and ankle on 24.02.2010 at about 08:00 P.M. PW.5 stated that he witnessed the accused beating him on the next day morning, i.e., on 25.02.2010 with hands. The same is not extracted as an omission. Thus, this evidence is good enough to bring home the guilt of the accused for the offence under Section 302 of I.P.C.
37. Learned counsel for the appellant further contended that the incident occurred in a spur of moment on a trivial issue; there were no inimical relations between the accused and the deceased; there was no intention to kill the deceased, and the case would not attract the offence under Section 302 of I.P.C.; the case would fall under Section 304 Part II of I.P.C.; and relied on the decisions of the Hon'ble Apex Court in Jagtar Singh vs. State of Punjab2 and Gurmukh Singh vs. State of Haryana3.
38. In Gurmukh Singh (3 supra), the Hon'ble Apex Court had extracted various judgments on the subject till then and observed the various facts and circumstances of the case which need to be considered whether the case would fall under Section 302 of I.P.C. or under Section 304 Part-II of I.P.C. In all the cases referred by the Hon'ble Apex Court, 2 AIR 1983 SC 463 3 Criminal Appeal No.1609 of 2009, dated 25.08.2009 ::20:: Dr.GRR,J & SSRN,J crla_970_2013 the appellants caused solitary injury, and the incidents occurred unexpectedly in a sudden quarrel without premeditation.
39. In the present case, even if the incident on 24.02.2010 is considered as occurred in a sudden quarrel without premeditation, it was not a solitary injury and there were several injuries inflicted upon the accused on the vital parts of the body, viz., head, stomach, causing contusion to liver, kidneys, skull, adrenals, etc., which resulted in his death. The accused even after the heat of passion cooled down, again visiting the house of the deceased on the next day morning and attacking the unarmed deceased person, who was not even in a position to respond, due to the beatings given to him on the previous day, would show the gravity of the incident. Therefore, the offence committed by the accused squarely falls under Section 302 of I.P.C., but not under Section 304 Part II of I.P.C.
40. Hence, considering the circumstances of the case and the conduct and behaviour of the accused involved in the incident, the weapon used for inflicting injuries and the force with which the blows were inflicted on the deceased, and the second incident took place not on the spur of the moment, it is considered appropriate to inflict the punishment against the accused for the offence under Section 302 of I.P.C. only.
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41. Therefore, the Criminal Appeal is dismissed confirming the conviction and sentence imposed by the trial Court against the appellant for the offence under Section 302 of I.P.C. No costs.
42. As a sequel, miscellaneous applications pending if any in this appeal, shall stand closed.
_________________________ Dr. G.RADHA RANI, J ______________________________ SAMBASIVARAO NAIDU, J Date : 16.09.2022 Ndr