Kummara Mallela Venkataramana, vs The State Of A.P., Rep By Pp.,
2023 Latest Caselaw 2109 AP

     THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

            CRIMINAL APPEAL NO.130 OF 2009

JUDGMENT:-

     This Criminal Appeal is filed by the appellant, who was the

second accused in Sessions Case No.61 of 2007, on the file of

Additional Sessions Judge, Hindupur, challenging the judgment,

dated 04.02.2009, where under the learned Additional Sessions

Judge, Hindupur, as against the charge under Section 302 of the

Indian Penal Code ("I.P.C." for short) framed against the present

appellant and first accused exonerated the first accused of the

charge, but found the second accused (present appellant) guilty

of the offence under Section 304 Part-II of I.P.C. and convicted

him under Section 235(2) of the Code of Criminal Procedure

("Cr.P.C." for short) and after questioning him about the

quantum of sentence, sentenced him to undergo rigorous

imprisonment for seven years and to pay a fine of Rs.200/-, in

default to suffer simple imprisonment for one month.

     2)    The parties to this Criminal Appeal will hereinafter

be referred as described before the trial Court for the sake of

convenience.

     3)    The Sessions Case No.61 of 2007, on the file of

Additional Session Judge, Hindupur, arose out of a committal
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order in P.R.C.No.60 of 2006, pertaining to Crime No.14 of 2006

of Amadagur Police Station.

      4)     The case of the prosecution, in brief, according to

the charge sheet filed by the Inspector of Police, Amadagur

Police Station before the Additional Judicial Magistrate of First

Class, Kadiri, pertaining to Crime No.14 of 2006 of Amadagur

Police Station under Section 302 r/w 34 of I.P.C is as follows:

      (i) A.1 is the wife of A.2. Both the accused are residents of

Kolimirallapalli     village   of    Amadagur      Mandal.    The      defacto-

complainant          Derangula       Chinnappalla       @     Chinnappaiah

(deceased)      is    resident      of   Kolimirallapalli   village.    L.W.1-

Derangula Venkata Lakshmi and L.W.2-Derangula Anil Kumar

are the wife and son of the defacto-complainant (deceased)

respectively.

      (ii) On 29.03.2006 at about 4-30 p.m., L.W.1 sent her son

L.W.2 to the street boring tap to bring water. When L.W.2 went

there and when he was taking water, the daughter of the

accused by name Vara Lakshmi objected L.W.2 in taking the

water and picked up a quarrel with L.W.2 and beat him. L.W.2

came back to his house and informed about the incident to his

mother, L.W.1. In the evening, when the defacto-complainant

(deceased) returned to his house, L.W.1 informed him about the

quarrel between L.W.2 and Vara Lakshmi at the boring tap. As
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it is children's galata, the defacto-complainant (deceased) asked

his wife L.W.1 not to take it as serious. Later, he went to his

tractor owner's house Shankar Reddy. At about 8-00 p.m., while

he was returning to his house, L.W.1 went to the house of the

accused along with L.W.2 to question them as to why their

daughter beat L.W.2. When L.W.1 questioned A.1 about the

incident, A.1 picked up galata with L.W.1 and both of them

quarreled   with   each   other.   In   the   meanwhile,    A.2   also

intervened and both the accused started quarrelling with L.W.1.

By that time, the defacto-complainant (deceased), who was

returning to his house, intervened and advised the accused not

to quarrel as it it only a children's issue. Both the accused did

not listen the words of the defacto-complainant (deceased). A.1

caught hold the hair of the defacto-complainant (deceased) and

A.2 brought an agricultural instrument (Thonika Katti) from their

verandah and beat on the head of the complainant (deceased)

and caused a bleeding injury knowing that the injury would

cause the death of the complainant (deceased). The said

agricultural instrument was stuck in the head of the complainant

(deceased). L.W.3-Kasula Muneppa, L.W.4-Derangula Ravi and

L.W.5-Upputholla Sivaiah witnessed the incident.           L.W.4 and

L.W.5 removed the agricultural instrument from the head of the

complainant (deceased). The complainant fell unconscious.
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L.W.1 shifted her husband to the Government Hospital, Kadiri,

for treatment.

        (iii) On 30.03.2006 L.W.12-Asst. Sub-Inspector of Police

of Kadiri Town Police Station recorded the statement of

complainant in the presence of L.W.10-Dr. Tippendra Naik, Civil

Assistant      Surgeon,    Government Area Hospital,               Kadiri      and

forwarded the said statement to L.W.13-Sub-Inspector of Police,

Amadagur Police Station on point of jurisdiction.

        (iv)   On    02.04.2006      L.W.13       on   receipt     of    hospital

intimation and the statement of complainant, registered the

same as a case in Crime No.14 of 2006 under Section 324 r/w

34     of   I.P.C.   of   Amadagur       Police    Station    and       took   up

investigation. He recorded the statement of complainant at

Government General Hospital, Ananthapur, seized the blood

stained clothes of him under the cover of police proceedings and

visited     the   scene   of   offence    and     seized     the   agricultural

instrument (Thonikala Katti) in the presence of L.W.6-Kadagutta

Siva      Shankar    Reddy     and    L.W.7-Uyala        Narasimhulu,          the

mediators, under the cover of scene observation mahazar. He

also prepared rough sketch of the scene of offence.

        (v) On 06.04.2006 L.W.13 received death intimation from

the Government General Hospital, Ananthapur, as such, he

altered the Section of law into 302 r/w 34 of I.P.C from 324 r/w
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34 of I.P.C., and issued altered express F.I.R. to all the

concerned. He intimated the incident to SDPO, Kadiri and

obtained oral instruments for conducting investigation. He

conducted inquest in the presence of panchayatdars over the

dead body of the deceased and later sent the dead body for

postmortem examination. L.W.10-the medical officer, who gave

first treatment to the complainant (deceased), issued would

certificate, stating that the complainant received grievous injury.

L.W.11-the Professor of Forensic Medicine, Government General

Hospital, Ananthapur, conducted postmortem examination and

issued postmortem report opining that the deceased died due to

head injury associated with peritonitis. L.W.14-Inspector of

Police, Nallamada, verified the investigation conducted by

L.W.13 and found it on correct lines.          He sent the agricultural

instrument (crime weapon) along with the blood stained clothes

through the jurisdictional Magistrate to RFSL, Tirupati for

Biological   and    Serological      examinations.      On   12.07.2006

Assistant    Director    issued   the    report.   On   18.07.2006    A.1

surrendered     before     the    jurisdictional   Magistrate   and   on

21.04.2006

A.2 surrendered before the jurisdictional Magistrate.

Both of them got bail. Both the accused attacked the deceased

with an intention to cause death. Hence, they are liable to be

punished under Section 302 r/w 34 of I.P.C.

5) The learned Additional Judicial Magistrate of First

Class, Kadiri, took cognizance under Section 302 r/w 34 of I.P.C.

After appearance of the accused, copies of documents were

furnished to them as required under Section 207 of Cr.P.C. The

learned Additional Judicial First Class Magistrate, Kadiri by

exercising powers under Section 209 of Cr.P.C., committed the

case to the Court of Sessions on the ground that the case is

exclusively triable by Court of Sessions. The learned Sessions

Judge after numbering the Sessions Case made over same to

the Additional Session Judge, Hindupur.

6) On appearance of both the accused before the

learned Additional Sessions Judge, Hindupur,, a charge under

Section 302 r/w 34 of I.P.C. was framed and explained to both

the accused in Telugu, for which they pleaded not guilty and

claimed to be tried.

7) To bring home the guilt against the accused, the

prosecution before the Court below, P.W.1 to P.W.11 were

examined and Ex.P.1 to Ex.P.18 were marked. During the cross

examination of P.W.2, Ex.D.1 was marked. The prosecution

further M.O.1 and M.O.2 were marked. After closure of the

evidence of the prosecution, accused were examined under

Section 313 of Cr.P.C. with reference to the incriminating

circumstances appearing in the evidence let in, for which they

denied the same. They did not let in any defence evidence.

8) The learned Additional Sessions Judge, Hindupur, on

hearing both sides and on considering the oral as well as

documentary evidence, found A.1 not guilty of the charge, but

found A.2 guilty of the offence under Section 304 Part-II of

I.P.C. i.e., culpable homicide not amounting to murder, as

against the original charge under Section 302 of I.P.C. and

accordingly, convicted and sentenced him as above. Aggrieved

by the same, the unsuccessful A.2 filed the present Criminal

Appeal challenging the judgment, dated 04.02.2009 in

S.C.No.61 of 2007, on the file of Additional Sessions Judge,

Hindupur.

9) Needless to point out here that as against the

findings of the learned Additional Sessions Judge, Hindupur, no

appeal is filed by the prosecution either against the acquittal of

A.1 or as against the conviction of A.2 under Section 304 Part-II

of I.P.C. as against the original charge under Section 302 r/w 34

of I.P.C. Under the circumstances, the scope of the appeal is

confined to as to whether the evidence adduced by the

prosecution would prove the offence of culpable homicide not

amounting to murder as against the A.2/present appellant.

10) Hence, in deciding this Criminal Appeal, the points

for consideration are as follows:

(1) Whether the prosecution before the Court below proved the offence under Section 304 Part-II of I.P.C. i.e., culpable homicide not amounting to murder against A.2 and whether it proved the said offence against A.2 beyond reasonable doubt?

(2) Whether there are any grounds to interfere with the judgment of conviction and sentence imposed against the appellant before the Court below?

POINTS:-

11) Sri P. Narahari Babu, the learned counsel for the

appellant, would contend that P.W.1 and P.W.2 are no other

than wife and son of the deceased, as such, they are interested

in the case of the prosecution and they supported the case of

the prosecution falsely. P.W.3, a crucial witness, did not support

the case of the prosecution. The learned Additional Sessions

Judge erroneously made an observation that the evidence of

P.W.6, the medical officer, corroborated with the testimony of

P.W.1 and P.W.2. The police recorded the statement under

Ex.P.9 when the deceased was in the hospital and the evidence

of P.W.1 and P.W.2 goes contra to the contents of Ex.P.9. Their

evidence has no support from the medical evidence with regard

to the fit state of mind of the deceased at the time of giving

statement under Ex.P.9. Ex.P.9 is suspicious document which

was brought into picture when the deceased was in unconscious

state. Apart from this, according to the postmortem report,

injury No.4 was of fracture of ribs. Ex.P.6, wound certificate of

the deceased, reveals that the injuries were said to be due to

accident. According to P.W.11 in cross examination, such

injuries could be caused by accident. The defence of the accused

before the Court below is that the deceased received injuries in

a road accident. The Court below did not appreciate the

evidence on record properly and made erroneous findings that

the evidence of P.W.7 corroborated with the evidence of P.W.1.

The learned Additional Sessions Judge did not look into the

evidence of P.W.1 in proper perspective. He would further

contend that in fact on account of the act of the son of P.W.1

i.e., P.W.2 in attacking the daughter of A.2, daughter of A.2 lost

her fifth month pregnancy and anticipating a case from A.1 and

A.2, they are implicated falsely in this case. In fact, Ex.P.9 was

not recorded on its purported date. All these circumstances are

overlooked by the learned Additional Sessions Judge. The

learned Additional Sessions Judge sustained conviction with

erroneous reasons basing on the interested testimony of P.W.1

and P.W.2 by disbelieving the theory of the defence that the

deceased received injuries in the motor vehicle accident.

12) With the above said submissions, the learned

counsel for the appellant contended that the appellant is liable

to be acquitted. Learned counsel for the appellant during the

arguments would contend further that if for any reason in the

event of dismissal of the appeal, the Court may reduce the term

of imprisonment because now the appellant is aged about 60

years.

13) Sri Y. Jagadeeswara Rao, learned counsel,

representing the learned Public Prosecutor, would contend that

though the evidence of P.W.1 and P.W.2 is interested in nature,

but, it is trustworthy. Though P.W.3 did not support the case of

the prosecution, but P.W.3 deposed that he found A.1 and A.2

attacking the deceased and by then electricity was lost and after

the electricity was restored, he could found the injured lying

with injuries. So, the evidence of P.W.3 is useful to the case of

the prosecution to certain extent. P.W.11 categorically explained

that apart from the head injury and a minor scratch and other

two injuries were on account of treatment given to the

deceased. Apart from this, the fracture of ribs could also be

possible by fall. The case of the prosecution is that when the

accused attacked the deceased, he was pushed to ground.

Hence, there was corroboration to the oral testimony of P.W.1

and P.W.2 even from the medical evidence. The Court below

disbelieved the theory of the defence with proper reasons.

Hence, the judgment of the learned Additional Sessions Judge is

fully convincing, as such, the Criminal Appeal is liable to be

dismissed.

14) The case of the prosecution is that after the incident,

the injured was shifted to Government Hospital, Kadiri and on

30.03.2006 L.W.12, the Asst. Sub-Inspector of Police of Kadiri

Town Police Station, recorded the statement of injured and

forwarded to L.W.12 on point of jurisdiction. It is the further

case that after that the deceased was succumbed to the injuries,

section of law was altered into Section 302 r/w 34 of IPC from

Section 324 r/w 34 of I.P.C. Under the circumstances, Ex.P.9

statement was marked by the prosecution before the Court

below through the examination of P.W.8, the then the Asst.

Sub-Inspector of Police, Kadiri Town Police Station. Therefore,

the basis for setting the criminal law into motion was Ex.P.9,

statement, recorded by P.W.8 from the deceased while he was

alive. The statement was recorded on 30.03.2006. The date of

death of the deceased was on 05.04.2006 while undergoing

treatment in Government General Hospital, Ananthapur. The

case of the prosecution is that the deceased while he was alive

was also shifted to Government General Hospital, Ananthapur

for treatment from the Government Hospital, Kadiri. So, P.W.1

is not the defacto-complainant.

15) Now, I would like to refer here the substance of the

evidence available on the crucial aspects. Coming to the

evidence of P.W.1, the wife of the deceased, she deposed that

she knows A.1 and A.2. Chinnappa is her husband. Three years

ago her husband died in Government General Hospital,

Ananthapur. Her husband was admitted in the hospital due to

head injury. Three years back at 8-00 p.m., a galata took place

near the house of A.1. The galata took place between her and

A.1. On that day at 4-30 p.m., her son Anil Kumar went to the

bore for water. At that time, there was altercation between

Varalakshmi, the daughter of accused and her so in connection

with collection of water. Her son came and informed the incident

to her. She told to her son that the matter would be intimated

to her husband after his arrival. Her husband returned from

Amadagur. At 6-00 p.m., she intimated the incident to him who

replied as to why they should interfere with the dispute of

children. Then, he went to the house of Shankar Reddy. A.1

was abusing them at that time. Then she and her son Anil

Kumar went to the house of A.1. By then A.1, A.2 and their

daughter Varalakshmi and one Muneppa were present there.

She told to A.1 not to abuse for the disputes of children and also

informed him that she chastised her son. In spite of it, A.1 was

abusing her in filthy language. Then the husband of P.W.1 came

to the place of galatga. He advised her (P.W.1) and A.1 not

enter into altercation for the disputes of the children. Even A.1

abused her husband and caught hold of his tuft of hair and fell

him down. Meanwhile, A.2 beat her husband on the head with

Thoniki Katti (Muliki) and pushed him down. The Thoniki Katti

stuck up in the head of her husband and her husband fell

unconscious. One Ravi and Sivaiah came there and removed

the Muliki from the head of her husband. Her husband was

attacked with paralysis stroke on the right hand and right leg.

She, Shankar Reddy and others took her husband to

Government Hospital, Kadiri. Police recorded the statement of

her husband in Government Hospital, Kadiri. Two days

thereafter, he was shifted to Government General Hospital,

Ananthapur. On 8th day of receiving of injury, her husband died.

She was informed that he died due to head injury. M.O.1 is the

Thonika Katti with which accused beaten her husband.

16) P.W.2 is the son of P.W.1, who deposed that three

years back, his father Chinnappaiah died in Government General

Hospital, Ananthapur due to head injury. A.2 caused the injury

to his father 8 days prior to his death at the house of the

accused. In the evening day he (P.W.2) went to get bore water.

There was altercation between him and Varalakshmi who is the

daughter of accused with regard to taking water. Varalakshmi

beat him with hands. He returned to the house and informed

the incident to his mother, who told to him that she would

intimate the incident to his father after he came to the house.

His father came to the house from Amadagur by 5-00 p.m.

Then his mother informed his father about the altercation. His

father advised her to keep quiet without provoking the children

dispute. So saying his father went to the house of Siva Shankar

Reddy. Then she, P.W.1 went to the house of accused. By

then Varalakshmi and Muneppa were present. P.W.1 asked A.1

as to why Varalakshmi beat him. A.1 abused them saying that

he (P.W.2) beat her daughter. Meanwhile, his father came

there. His father asked him as to why the elders will quarrel for

the disputes of the children. A.1 caught hold of the hair of his

father and beat him. A.2 beat his father with Thoniki Katti on

his head and Thoniki Katti stuck to the head of his father. A.2

also kicked his father and his father fell down on a stone. Ravi,

Sivappa and Muneppa witnessed the incident. Ravi and Sivappa

removed the Thoniki Katti from the head of his father. They

shifted his father to Government Hospital, Kadiri in a Jeep. His

father was there for three days and later, he was taken to

Government General Hospital, Ananthapur where he died while

undergoing treatment. Doctor informed them that his father

died due to injury inflicted with Thoniki Katti.

17) P.W.3 deposed that the deceased died about three

years back. At 8-00 p.m., on one day there was a galata

between the accused and P.W.1 at the house of accused in

connection with altercation between children at the bore. At

that time he was at the house of accused. The accused, P.W.1

and her husband were dragging the hair of the deceased. At

that time there was power cut and he does not know what was

happened later. He saw the deceased lying with injury with

Munigekatte. He does not know what was happened

subsequently. The prosecution cross examined for not

supporting the case of the prosecution fully and during cross

examination, he denied that he stated before police as in Ex.P.1

and that he is deposing false.

18) P.W.4 and P.W.5 did not support the case of the

prosecution. According to them, they do not know how the

deceased died. During cross examination by the learned

Additional Public Prosecutor, they denied that they stated before

police as in Ex.P.2 and Ex.P.3 (Section 161 of Cr.P.C.

statements of P.W.3 and P.W.4 respectively).

19) P.W.6 deposed that the deceased was working under

him as a Tractor driver. On the date of incident at 6-30 p.m.,

the deceased came to him. On hearing that there was galata,

he went there without informing him. While he (P.W.6) was

taking meal, P.W.1 and sister came to him and informed that

the deceased Chinnappaiah received head injuries. P.W.4 and

P.W.5 brought Chinnappaiah to his house by carrying him. By

that time, the leg and hand of Chinnappaiah were affected with

paralysis stroke. He got the Jeep from Amadagur for rent. They

took Chinnappaiah in a Jeep to the Government Hospital, Kadiri.

He was there as in-patient for two days. On the third day, he

was shifted to Government General Hospital, Ananthapur. Eight

days after the injury he received, a phone call received that

Chinnappaiah died. He was present at the time of inquest over

the dead body of deceased. The panchayathdars concluded that

on account of injuries to the brain, Chinnappaiah died. Ex.P.4 is

the inquest report. He attested Ex.P.4. He was also present at

the time of observation of the scene of offence along with

Narasimhulu at request of police. By that time, accused were

absconding. Police observed the scene of offence and prepared

scene observation mahazar. The daughter of accused Nagamani

handed over M.O.1 to the police. He attested Ex.P.5 scene

observation report.

20) P.W.7 is the medical officer, who treated the injured

and issued wound certificate.

21) P.W.8 is the Asst. Sub-Inspector of Police, who

recorded the statement from the injured.

22) P.W.9 is the Sub-Inspector of Police, who registered

the F.I.R. and conducted investigation.

23) P.W.10 is the Inspector of Police, who continued the

investigation.

24) P.W.11 is the medical officer, who conducted

autopsy over the dead body of the deceased.

25) The prosecution projected P.W.1, the wife of the

deceased and P.W.2, the son of the deceased, as direct

witnesses to the occurrence. The scene of offence was said to be

at the house of the accused. Now, this Court has to see as to

whether the testimony of P.W.1 and P.W.2 is believable and is

inspiring confidence. Simply because they are interested

witnesses, their evidence cannot be disbelieved.

26) The place of offence was at the house of the

accused. Accused got probing cross examination of P.W.1 and

P.W.2. The effort made by the accused during the cross

examination of P.W.1 and P.W.2 as to whether they know the

Jeep number in which the injured was carried to the hospital,

etc., deserves no merits. There is no dispute about the fact that

after receipt of injury by the deceased, he was shifted to

Government Hospital, Kadiri and after two or three days, he was

shifted to Government General Hospital, Ananthapur. So, the

mode of transport to the hospital is not criteria, as such, I do

not find any merit in the effort made by the accused in that

regard during the cross examination of P.W.1 and P.W.2.

27) During the cross examination, P.W.1 deposed that

the galata took place between Varalakshmi, the daughter of the

accused and her son. She denied a suggestion that in that

galata, her son caught tuft of Varalakshmi and beat her. She

deposed that on the date of incident, Varalakshmi carried fifth

month pregnancy. She denied a suggestion that because her

son beat Varalakshmi, her pregnancy was aborted. She denied

that they held panchayat in the village apprehending that the

accused would file case against them for abortion of

Varalakshmi. She denied that she and her son did not go to the

house of the accused at 8-00 p.m., and that they did not ask

A.1 as to why she was abusing for the dispute of the children.

At the time of galata between her son and Varalakshmi, her

husband was not in the village and he went to Amadagur on the

tractor of Shankar Reddy as a driver. She denied that her

husband was coming in a tractor by 10-00 p.m. and that

accident took place and that her husband fell down and that he

received head injury. She denied that apprehending that the

accused would give report against her son on account of

abortion of Varalakshmi, the case is foisted against the accused.

She denied that her husband received injuries in the accident in

which the accused had no connection and taking advantage of

the injury to her husband, she filed false case.

28) During the course of cross examination of P.W.2, he

denied that his father fell down in a tractor accident and that he

is deposing false that A.2 beat his father. He further denied that

he stated before police as in Ex.D.1. P.W.10, the Inspector of

Police, deposed that P.W.2 stated before him as in Ex.D.1. In

my considered view, Ex.D.1 is of no use to the case of the

defence because it is pertaining to the so-called altercation

between P.W.2 and the daughter of the accused and according

to it, literally both P.W.2 and daughter of the accused beat with

each other. It has nothing to do with the actual offence in

question. Therefore, it is of no use to the case of the accused.

29) It is to be noticed that the case of the prosecution is

that when the son of P.W.1 was sent to catch bore water, there

was a quarrel between the daughter of the accused and P.W.2

and P.W.2 complained to P.W.1 and P.W.1 intimated to P.W.2

that after return of her husband, the matter will be intimated to

him and when the deceased returned back in the evening, she

revealed the incident to deceased, who advised her not to give

importance to the children issue. The so-called incident as

regards the quarrel between daughter of the accused and P.W.2

was prior to the offence in question. The alleged incident as

regards the charge was at the house of the accused. According

to the evidence of P.W.1 and P.W.2, the offence took place at

the house of the accused when P.W.1 and P.W.2 went there to

question the act of daughter of the accused in attacking P.W.2.

As regards the place of occurrence, there is evidence of P.W.3.

The evidence of P.W.3 is that there was a galata about three

years back at 8-00 p.m., between the accused and P.W.1 at the

house of the accused in connection with the altercation between

the children at the bore. Though he did not support the case of

the prosecution to some extent, the extent to which he

supported the case of the prosecution can be considered. Here

P.W.3 testified the place of occurrence as at the house of the

accused and he further testified that he found the deceased

lying with head injury with Munigekatti. Absolutely, P.W.3 had

no reason to depose false with regard to the place of occurrence

as at the house of the accused and further the receipt of injury

by the deceased. Therefore, the evidence of P.W.3 to that extent

corroborates the evidence of P.W.1 and P.W.2.

30) The defence of the accused before the Court below is

that the deceased received injuries in a motor vehicle accident

and taking advantage of the same, P.W.1 filed a false case and

that in fact P.W.2 attacked the daughter of the accused and

caused abortion when she was carrying fifth month pregnancy.

P.W.1 and P.W.2 denied the above said defence of the accused.

It is to be noticed that the alleged act attributed against P.W.2

as if he attacked the daughter of the accused and caused

abortion of fifth month pregnancy, if true would amounts serious

offence. The causing abortion to a woman when she was

carrying fifth month pregnancy, definitely, involved some

medico legal aspect. Apart from that causing abortion by using

criminal force would also cause some injury to the daughter of

the accused. If that is the situation, there is no clue from the

defence of the accused as to whether the daughter of the

accused received any injury and as to whether she was referred

to hospital for getting proper treatment after abortion and as to

why accused did not venture to bring the said fact to the notice

of the police. Therefore, the defence of the accused in this

regard is not that of a man of reasonable prudence. Except bald

suggestion which was denied by P.W.1 and P.W.2, accused did

not probabalize this theory of defence in any way for alleged

false implication.

31) According to the evidence of P.W.7, the medical

officer, on 30.03.2006 at about 12-45 a.m., he examined D.

Chennappa (deceased) and found a puncture wound measuring

1 x 1 c.m. into skin depth over the left partial area. He took X-

ray of skull AP and lateral view at 9-15 a.m. on the same day.

He noticed fracture of the left partial bone with internal

hemorrhage. The injury is grievous in nature. Ex.P.6 is the

wound certificate. The injury can be caused with a sharp edged

weapon. During the cross examination, he deposed that after

receiving information from the wife of the accused, he prepared

Ex.P.6. A person with injury noted in Ex.P.6 can speak and he is

fully conscious. He can understand what is going on his

surroundings. As per the information received from the injury,

the injury was caused accidentally. Punctured injury and stab

injury is one and the same. M.O.1 is four edged with a point.

According to the medical jurisprudence test book by K.S.

Narayana Reddy, a pointed square weapon may produce a cross

shaped injury each of the four edges. During re-examination,

he clarified that M.O.1, the edge of weapon, is pointed in shape

about 0.5 c.m. and it is only sharp and not with four edges.

During cross examination on behalf of the accused, he deposed

that the injury in Ex.P.6 is superficial.

32) In the light of the clarification made by P.W.7 in

M.O.1 up to 1.5 c.m. from the point side it is only sharp and it is

not with four edges. So, insofar as the injuries received by the

deceased on his head are concerned, it is supported by P.W.7

couple with Ex.P.6.

33) Admittedly, it is a case where there is whisper in

Ex.P.6 as if the injury was caused accidentally. It is to be

noticed that P.W.7 being the medical officer ought to have taken

proper care to ascertain as to the manner in which the deceased

received head injury. Even according to him, the deceased was

conscious at the time of admission into the hospital. Apart from

this, the case of the prosecution is that P.W.9 recorded Ex.P.9

statement from the injured in the presence of P.W.7 when the

deceased was brought to the hospital in a conscious state, who

was capable of giving a statement. The act of P.W.7 in getting

information from P.W.1 as to how the deceased received injury

is not at all proper. There is a lot of difference between the

words "the injuries received in accident" and "the injury was

caused accidentally". On account of the fact that P.W.7 did not

write properly in Ex.P.6 as to how the deceased received

injuries, the accused wanted to take an advantage. In fact,

P.W.1 was not at all cross examined as to whether she intimated

to P.W.7, the medical officer, that the deceased received injury

accidentally. It is a case where according to the case of the

prosecution, P.W.9 recorded the statement of the injured under

Ex.P.9, which is in tune with the evidence adduced through the

examination of P.W.1 and P.W.2. Under the circumstances, it is

unsafe to believe the defence theory basing on a vague whisper

in Ex.P.6 that the injury was caused accidentally.

34) Apart from that, even the defence of the accused is

that the evidence of P.W.11 coupled with Ex.P.18, postmortem

report, reveals that injury No.4 is 4th and 5th ribs fractured and

according to P.W.11 it could also be possible by fall or in the

vehicle accident. Therefore, the effort made by the accused is

that as there was fracture of ribs, there was a probability to

receive such injuries in a vehicle accident.

35) Admittedly, the evidence of P.W.11 means that he

found external injuries of abrasion of 3 x 2 c.m. on the left

temporal region covered with black scab a corrugated rubber

drain in a surgical wound of 1 ½ x ½ c.m. on right side of front

of lower abdomen, a borehole of 1 c.m. diameter on left partial

bone and there were 4th and 5th ribs fractures at their anterior

angles. During cross examination, he deposed that injury No.2

and injury No.3 are the surgical injuries caused during the

course of treatment. Injury No.3 was caused while admitting

the patient into the hospital to remove the blood clots from the

cranial cavity. Injury No.2 was possible as a part of treatment

to remove pus from the abdominal cavity. He deposed that the

fracture of ribs i.e., injury No.4 could be possible by fall or in the

vehicle accident. It is basing on these answers and on account

of the presence of 4th and 5th ribs fractures the accused

canvassed the contention that the deceased received injuries in

a road accident.

36) It is to be noticed that P.W.1 and P.W.2 and even

P.W.3 were not supposed to speak about the internal injuries

received by the deceased. The evidence of P.W.1 is very clear

that in the attack, the deceased was pushed to down and further

after the deceased was attacked with Thoniki Katti, he fell

unconscious. Apart from this, there was also allegation that the

deceased was fallen to ground. Even according to the evidence

of P.W.2, A.2 also kicked his father and his father fell down on a

stone. Even according to the answers elicited through the cross

examination of P.W.11, injury No.4 could be possible by fall.

Here there is ocular testimony that the deceased was pushed

down to ground during the course of attack. When this is the

situation, there was every possibility that the deceased received

4th and 5th ribs fractures when he was pushed down to ground.

Even according to the evidence of P.W.11 such injury can be

possible even by pressing with hands on the chest. Therefore,

the very evidence of P.W.1 and P.W.2 and the answers elicited

from the cross examination of P.W.11 itself explains that there is

every possibility for receipt of 4th and 5th ribs fractures when the

deceased was pushed to down during the course of attack. By

any stretch of imagination, it cannot be held that the deceased

received injuries in the vehicular accident.

37) P.W.6 was no other than the person under whom the

deceased was working as a driver. He categorically testified

that on hearing about the galata between his family members

and the accused, he rushed to the spot from the house of P.W.6.

Nothing is suggested to P.W.6 that the deceased received

injuries in a vehicular accident. P.W.6 was the proper person to

say as to whether his vehicle involved in any accident. It is only

basing on a vague whisper made by P.W.7 without any basis in

Ex.P.6, accused wanted to take an advantage.

38) Having regard to the overall facts and

circumstances, the theory of the defence that the deceased

received injuries in a vehicular accident cannot stand to any

reason. The evidence of P.W.1, P.W.2 and P.W.3 has

corroboration from the evidence of P.W.7, medical officer,

coupled with Ex.P.6. The cause of death is clear from the

evidence of P.W.11 coupled with Ex.P.18 to the effect that the

deceased died due to head injury associated with peritonitis. It

is a case where the weapon of offence used by A.2 was stuck up

in the head of the deceased for a considerable period of time.

39) The evidence of P.W.8, the Asst. Sub-Inspector of

Police, Kadiri Town Police Station is that on 30.03.2006 he

received medical intimation under Ex.P.8 and then he went to

Government Hospital, Kadiri, consulted the duty doctor and

enquired about the injured person Chinnappaiah. He recorded

the statement of injured in the presence of duty doctor after

confirming about the mental status. He endorsed to that effect

on the statement. Ex.P.9 is the statement. Ex.P.7 is the

endorsement of the duty doctor on Ex.P.9. Later, he transmitted

Ex.P.8 and Ex.P.9 to Amadagur Police Station. Nothing is elicited

in the cross examination to disbelieve his testimony. He deposed

that he scribed Ex.P.9 in his own hand writing. Some persons

including the wife of the deceased were present at the time of

recording Ex.P.9. He denied that Ex.P.9 is not the statement of

the deceased and it is created. It is very difficult to uphold the

contention of the accused in this regard. There is no dispute that

P.W.9 having received Ex.P.9 registered the F.I.R. and took up

investigation. Ex.P.9 was recorded on 30.03.2006. P.W.9

deposed that he received Ex.P.8 and Ex.P.9 on 02.04.2006 at

7-00 a.m., and registered F.I.R. and took up investigation.

Therefore, according to P.W.9, he received Ex.P.8 and Ex.P.9

along with the memo, dated 30.03.2006 and it goes to show

that Ex.P.9 was recorded on 30.03.2006. In fact, the

endorsement made by P.W.7 on Ex.P.7 discloses that statement

was recorded on 30.03.2006 in the presence of medical officer.

The evidence of P.W.7 is not at all impeached in this regard. So,

there are no suspicious circumstances to doubt the manner in

which Ex.P.9 was recorded by P.W.8 which was the basis for

setting the criminal law in motion. Hence, Ex.P.9 literally runs

as to the circumstances in which the deceased received injuries

in the hands of the accused. Undoubtedly, it can be taken as

dying declaration. The Court below placed reliance on Ex.P.9 to

treat it as a dying declaration. Though the deceased died on

06.04.2006 i.e., 8 days of the incident, it cannot be held that

the death of the deceased has nothing to do with the attack

made by the accused.

40) Having regard to the above, this Court is of the

considered view that Ex.P.9 can be taken as dying declaration

which reveals that A.2 attacked the deceased with M.O.1 and

caused severe head injury. If really the deceased received

injuries in a motor vehicle accident, those things would have

been found place in Ex.P.9. On 30.03.2006 itself Ex.P.9 was

recorded. Hence, the contention of the accused that anticipating

that accused would file a case for causing abortion to his

daughter by P.W.2, P.W.1 filed false case cannot stand to any

reason.

41) In the light of the above, this Court is of the

considered view that the prosecution has categorically proved

beyond reasonable doubt that A.2 made an attack on the head

of the deceased with a dangerous weapon and caused severe

bleeding injury and the cause of death is nothing but act of the

accused. The Court below with proper reasons held that A.2 had

no intention to kill the deceased but A.2 had knowledge that the

injury caused to the injured is likely to cause his death. As

pointed out, there is no appeal challenging the judgment of the

Court below by the prosecution.

42) Having regard to the above, this Court is of the

considered view that the evidence adduced by the prosecution is

fully convincing and it proves beyond reasonable doubt that A.2

caused the death of the deceased by his act which is an act of

culpable homicide not amounting to murder. Hence, I do not

see any reason to interfere with the judgment of the learned

Additional Sessions Judge, Hindupur, dated 04.02.2009.

43) Turning to the contention of the learned appellant

that in the event of dismissal of the Criminal Appeal, the Court

may reduce the sentence of imprisonment, this Court would like

to make it clear that as on the date of offence, the accused was

aged about 40 years. The incident was happened on

29.03.2006. Now, he must have been in the age group of

around 57 years. The Court below sentenced him to suffer

rigorous imprisonment for 7 years. Under the circumstances, I

do not see any reason to reduce the sentence of imprisonment

imposed against the appellant.

44) In the result, the Criminal Appeal is dismissed.

45) The Registry is directed to take steps immediately

under Section 388 Cr.P.C. to certify the order of this Court to

the trial Court on or before 27.04.2023 and on such certification,

the trial Court shall take necessary steps to carry out the

sentence imposed against the appellant and to report

compliance to this Court.

Consequently, miscellaneous applications pending, if any,

shall stand closed.

________________________ JUSTICE A.V. RAVINDRA BABU Dt. 20.04.2023.

PGR

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

CRL. APPEAL NO.130 OF 2009

Registry to circulate a copy of this judgment to the Court below on or before 27.04.2023.

Date: 20.04.2023

PGR