Kulla Simhachalam A1 E.G.Dt Anr., vs State Of Ap., Rep. Pp. Hyd.,
2021 Latest Caselaw 5 AP

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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

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.

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

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

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/*

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/*