Gujjala Mouli vs State Of A.P.,
2023 Latest Caselaw 885 AP

                                  1



     THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
                                AND
HON'BLE SMT JUSTICE VENKATA JYOTHIRMAI PRATAPA

               Criminal Appeal No. 875 of 2016

JUDGMENT: (Per Hon'ble Sri Justice C.Praveen Kumar)

1)    Accused No. 1 in Sessions Case No. 34 of 2015 on the

file of II Additional Sessions Judge, Parvatipuram, is the

Appellant herein. Originally, Accused No.1 along with two [02]

others were tried for the offence punishable under Section

302 of Indian Penal Code ['I.P.C.']. By its Judgment, dated

19.08.2016

, the learned Sessions Judge, while acquitting

Accused Nos. 2 and 3, convicted Accused No. 1 and sentenced

him to suffer rigorous imprisonment for life for the offence

punishable under Section 302 of I.P.C. and to pay fine of

Rs.1,500/- in default to undergo rigours imprisonment for a

period of three months.

2) The gravamen of the charge against the Accused is that,

on 26.11.2013 at 5.00 P.M., all the accused caused the death

of Gujjala Simhadri ['deceased'] by beating him with hands

and kicking him on his stomach and chest.

3)     The facts, in issue, are as under:


 i)    PW1 is the wife; PW2 is the son; PW3 is the elder

brother, of the deceased while Accused No. 2 is the

mother and Accused No. 3 is the sister of Accused No. 1.

The house of the accused and the deceased are situated

adjacent to each other and there were disputes between

them, with regard to raising of a common wall.

ii) On 26.11.2013 at 9.00 A.M., PW1 and deceased went to

their fields and returned home at 5.00 P.M. During that

period, Accused No. 2 and 3 was laying slab on the joint

wall with the help of coolies. At that point of time, PW1

and deceased questioned Accused No. 1 to 3 about

laying of a slab on the joint wall without settling the

disputes. A quarrel ensued between the accused and

deceased. At that point of time, Accused No. 1 came

there, abused PW1 in filthy language and threatened to

kill her. When the deceased tried to rescue PW1, all the

accused fisted the deceased with hands. Thereafter,

when the deceased got up, Accused No.1 again kicked

the deceased on his chest, side ribs and stomach. On

receiving the blows, the deceased fell down and could

not get up due to severe pain. When PW1 raised cries,

her mother-in-law, by name, Jogamma, came there and

gave water to the deceased. Having regard to the

condition of the injured [deceased], 108 ambulance was

called and by the time the ambulance came, the

deceased died, as such he was not taken to hospital.

PW1 is said to have informed relatives at 8.30 P.M. On

receipt of phone call, police also arrived at the scene,

where PW1 lodged a report [ExP5].

iii) PW11 - Sub-Inspector of Police, Seethanagaram Police

Station, registered a case in Crime No. 140 of 2013

basing on Ex.P5 for the offence punishable under

Section 302 I.P.C. Ex.P6 is the First Information Report.

Further investigation, in this case, was taken up by

PW13, who on receipt of Ex.P6 [F.I.R.], proceeded to the

scene of offence. At the scene, he conducted scene

observation proceedings in the presence of mediators.

Ex.P2 is the scene observation report. He also got

prepared a rough sketch of the scene under Ex.P8 and

got photographed the scene of offence through PW10

under Ex.P5. Thereafter, he conducted inquest over the

dead body in the presence of PW9. Ex.P3 is the inquest

report. The mediators examined at the time of inquest

opined that, the accused beat the deceased with hands.

After conducting inquest, the body was sent for post-

mortem examination.

iv) PW12 - Civil Assistant Surgeon, Community Health

Center, conducted autopsy over the dead body and

issued Ex.P7 - the post-mortem certificate. According to

him, the cause of death was due to cardio respiratory

arrest due to massive internal haemorrhage; due to

fracture of right four lower ribs causing liver laceration

due to internal bleeding.

v) While things stood thus, Accused No. 1 to 3 went to

Tahsildar Office and confessed about the commission of

offence. The statements of the accused were recorded by

PW7 and PW8 under Ex.P1. Thereafter, PW7 and PW8

handed over the accused to PW13 [Inspector of Police],

who remanded them to judicial custody. After deleting

the name of one Gujjala Naresh, a charge-sheet came to

be filed, which was taken on file as P.R.C. No. 10 of

2014 on the file of Additional Judicial Magistrate of First

Class, Bobbili.

4) On appearance of the accused, copies of documents as

required under Section 207 Cr.P.C., came to be furnished.

Since the case is triable by Court of Sessions, the same was

committed to Court of Sessions under Section 209 Cr.P.C.

Basing on the material available on record, charge as referred

to above came to be framed, read over and explained to the

Accused, to which, the Accused pleaded not guilty and

claimed to be tried.

5) In support of its case, the prosecution examined PW1 to

PW13 and got marked Ex.P1 to Ex.P8. After completion of

prosecution evidence, the Accused were examined under

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

circumstances appearing against them in the evidence of

prosecution witnesses, to which they denied, however, no

evidence was adduced in support of their plea.

6) Believing the evidence of PW1, PW4 and PW6, the

learned Sessions Judge convicted Accused No.1 while

acquitting Accused No. 2 and 3 for the offence punishable

under Section 302 I.P.C. Against this conviction, the present

Appeal is filed by Accused No. 1.

7) (i) Sri.T. Nagarjuna Reddy, learned Counsel

appearing for the Appellant/Accused No.1, mainly submits

that, there are number of circumstances to indicate that

neither PW4 nor PW6 were present at the scene of offence. He

submits that, if they were present at the scene, nothing

prevented them to refer their names in the First Information

Report or at-least at the time of the inquest. Since, they came

forward as eye witness, long after the incident, pleads that, no

reliance can be placed on the said evidence.

(ii) Insofar as PW1 is concerned, the learned Counsel

would contend that, in the absence of any injury on her body,

when the evidence of PW4 indicates that she was assaulted

with an iron beam, her presence at the scene is also doubtful.

In view of the above, he would contend that, none of the

witnesses, projected as eye witnesses, have seen the incident,

as such, the accused is entitled for benefit of doubt.

8) (i) Sri. S. Dushyanth Reddy, learned Additional Public

Prosecutor appearing for the State, opposed the same

contending that, these minor discrepancies pointed out by the

learned Counsel for the Appellant do not go to the root of the

matter. According to him, it is not necessary that names of all

the eye witnesses have to be mentioned in the inquest or in

the First Information Report. In other words, he would submit

that, the F.I.R. is not an encyclopedia, which should contain

all the details and it is only to know the actual cause of death

and, as such, non-mentioning the name in the First

Information Report and inquest, do not falsify the case of the

prosecution.

(ii) Insofar as PW1 is concerned, learned Additional

Public Prosecutor would contend that, she is natural witness

and merely because the assault with iron beam was not

mentioned by PW1, does not make her presence doubtful, as

the evidence of prosecution witnesses gets corroboration from

medical evidence, hence pleads that conviction and sentence

imposed warrants no interference.

9) In reply, Sri. T. Nagarjuna Reddy, learned Counsel

appearing for the Appellant/Accused No.1, would contend

that, even accepting the entire case of the prosecution is true,

no offence under Section 302 of I.P.C. is made out, since the

incident is an outcome of a quarrel relating to the accused

raising a slab on common wall.

10) The point that arises for consideration is, whether the

prosecution was able to bring home the guilt of the Accused

No.1 beyond doubt for the offence punishable under Section

302 I.P.C.?

11) In order to appreciate the rival arguments advanced, it

would be just and proper to refer to the evidence of PW1, PW4

and PW6.

12) PW1 is the eye witness to the incident. According to her,

on the date of incident, at about 4.30 or 5.00 P.M., she

noticed the accused laying slab on the joint wall. When she

questioned Accused No. 1 to 3 about the same, Accused No. 1

is said to have abused and threatened to kill her. When her

husband [deceased] intervened and questioned the accused

as to why they are abusing PW1, all the accused fisted him,

as a result of which, the deceased fell down. When he got up,

Accused No. 1 again kicked him on chest, side ribs and

stomach, as a result of said blow, the deceased again fell

down and could not get up.

13) From the evidence of this witness, it is clear that she

only speaks about the accused assaulting the deceased, and

the quarrel which took place between PW1 and the accused

prior to the incident in question, with regard to laying of slab

on the common wall without paying the amount agreed in

settlement of dispute. PW1 was cross-examined at length, but

nothing came to be elicited to discredit her testimony. On the

other hand, the answers elicited show that, she was present

in the upstairs portion at that point of time. It would be

useful to extract the said portion, which is as under:

"It is not true to suggest that A.1 was not present at the scene of offence. The incident occurred in the upstairs. I was also present there in the upstairs at the time of the incident. It is not true to suggest that my husband was suffering from heart ailment."

14) From the answers elicited in the cross-examination of

PW1, it stands established beyond doubt that she was present

at the time of the incident. One another fact, which requires

to be noted here is that she does not speak about the assault

on herself by any of the accused.

15) Coming to the evidence of PW4 and PW6, PW4 is a

'Mason', working at the site. According to him, at about 4.00

or 5.00 P.M., Accused No. 2, 3 and PW4, one Atchuta,

Yerakayya and Nedunuri Krishna, went upstairs for laying

beam work. PW1 and deceased also came there and

obstructed them from laying beam, as payment was not made

as agreed upon. PW1 sat on the joint wall and obstructed

from laying a slab. Meanwhile, there was an altercation

between the deceased, Accused No. 2 and 3. In that

altercation, the deceased slapped Accused No. 2 and pushed

one another. Thereafter, Accused No. 1 came there and

questioned Accused No. 2 about the incident. Accused No.2

narrated as to what had happened to Accused No.1.

Meanwhile, when PW1 obstructed, Accused No. 1 pulled her

down and beat her with iron beam on her head. Immediately,

the deceased intervened, then Accused No.1 kicked the

deceased on his stomach, as a result of which, he fell down.

16) The evidence of PW4 would show that, as if Accused

No.1 beat PW1 with iron beam on her head, apart from

kicking the deceased on his stomach. In-fact, PW1 was not

even sent to doctor for examination. This version of PW4 was

spoken to even by PW6, namely, attack on PW1. But, we are

not inclined to accept the fact of PW1 being attacked with iron

beam. Had PW1 been attacked, definitely, there would have

been some injuries on her body. But, this piece of evidence

does not establish that PW1 was not present at that point of

time, since, the evidence of PW4 corroborates the evidence to

the extent that PW1 was present and Accused No.1 assaulting

the deceased.

17) Coming to the evidence of PW6; he also speaks about

the attack on the deceased by Accused No. 1 in the manner

spoken to by PW1. The evidence of this witness is silent with

regard to attack on PW1. His evidence is only to the effect that

Accused No. 1 came from ground floor to the upstairs and

pushed PW1. Even assuming for the sake of argument that

the evidence of PW6 cannot be believed, for the reason that

his name does not figure in the First Information Report or

inquest, but, as observed by us, the evidence of PW1 inspires

confidence to believe her to be an eye witness to the incident,

more so, when her presence in the upstairs at that point of

time, cannot be doubted. Further, the evidence of PW1 gets

corroboration from other evidence in all quarters. Further, the

evidence of doctor [PW12] also supports the case of the

prosecution with regard to the injuries sustained by the

deceased. Hence, we hold that no ground is made to

disbelieve the evidence of PW1 and PW6 with regard to

assault on the deceased. Accordingly, even if the evidence of

PW6 is excluded from consideration, as urged by the learned

Counsel for the Appellant, still the evidence of PW1, in our

view, can be accepted, as it gets corroboration from the

medical evidence.

18) Insofar as extra-judicial confession is concerned, the

learned Counsel for the Appellant tried to contend that, there

was no necessary for the accused to go and make a

confession before PW7 [V.R.O] disclosing the commission of

the offence. Though, the Additional Public Prosecutor opposed

the same, but, we feel that there was no reason for Accused

No.1 to 3 to confess about the commission of the offence

before PW7. Things would have been different had confession

was made seeking help or protection from the police, but, it

does not appear to be so. Hence, we are not inclined to accept

the extra-judicial confession made before PW7 [V.R.O] by all

the accused. But, since, PW1 can be treated as a sterling

witness; we believe her evidence to hold that there was an

incident on that day, in which the deceased was assaulted by

Accused No.1.

19) Sri. T. Nagarjuna Reddy, learned Counsel appearing for

the Appellant/Accused No.1 submits that, since PW1 in her

evidence states that she cannot identify the report, as she is

illiterate and she is not a signatory, her evidence cannot be

believed, more so, when she is disowning the report. We have

perused the evidence of record and also the evidence of PW1.

It is not a case where PW1 is disowning the report. PW1 in her

evidence admitted that she is a illiterate lady and as such,

she cannot identify the report. But, she clearly states that,

she is not signatory, meaning thereby that she has to put

thumb impression. The said fact was corroborated by the

evidence of PW11, who categorically states that, on receiving a

call; he proceeded to the scene of offence and collected the

written report [PW5] at the spot from PW1. Therefore, the

argument that entire fabric of the case collapses because of

denial of PW1 in lodging a report, cannot be accepted.

20) At this stage, Sri.T. Nagarjuna Reddy, learned Counsel

appearing for the Appellant/Accused No.1, would contend

that, since the incident happened pursuant to a quarrel

between two neighbours with regard to laying of a slab over a

common wall, pleads for scaling down of the offence. Learned

Additional Public Prosecutor opposed the same.

21) As seen from the evidence available on record, more

particularly, the evidence of PW1, there was some mediation

in which the accused were directed to pay some money to

PW1 and others. But, without paying any money, the accused

were laying a slab over a common wall, in respect of which a

quarrel ensued and the accused abused PW1 in filthy

language and also threatened to kill her. At that point of time,

her husband [deceased] intervened, which lead to a quarrel

between the accused and the prosecution party. During said

quarrel, Accused No. 1 is said to have fisted the deceased on

his stomach, as a result of which the accused fell down and

later on when he got up, Accused No. 1 again kicked him on

his chest, side ribs and stomach, as a result of which the

deceased fell and could not get up due to severe pain.

22) From the above, it is clear that, prior to the incident

there was a quarrel between PW1 and the accused with

regard to laying of slab over the common wall for payment of

money as agreed before the mediators.

23) Therefore, it can be said without any hesitation that

there was a quarrel between two neighbours pursuant to

which, the incident in question took place. As seen from the

record, initially the deceased was fisted as a result of which,

he fell down and, thereafter, he was alleged to have been

kicked with legs, leading to his death. Therefore, it cannot be

said that, the accused had any intention to cause the death of

the accused. If really the intention was to cause death,

definitely, they would have used weapon or stick or iron

beam, which were lying there, to cause the death of the

deceased.

24) Taking into consideration the manner in which the

incident in question took place and in the absence of any ill-

will, motive or prior enmity between the accused and the

deceased, we are of the view that the conviction of the

Appellant/Accused No.1 has to be scaled down to one under

Section 304 Part-II of I.P.C. Hence, the conviction under

Section 302 IPC is set-aside and the Appellant/Accused No.1

is convicted for the offence punishable under Section 304

Part-II I.P.C. and sentenced to undergo rigorous

imprisonment for a period of seven years. Since the

Appellant/Accused No. 1 is on bail in pursuance of the Order,

dated 06.10.2021, passed by this Court in I.A. No.1 of 2021,

the Appellant/Accused No.1 is directed to surrender himself

forthwith before the II Additional Judicial Magistrate of First

Class, Visakhapatnam, and on such surrender, the

Magistrate shall, in turn, send the Appellant/Accused No. 1

to the jail concerned for serving the remaining sentence. In

case of failure to surrender, the Magistrate shall take steps for

securing the presence of the Appellant/Accused No. 1 and

commit him to the prison.

25) Accordingly, the appeal is allowed in part.

Consequently, miscellaneous petitions, if any, pending shall

stand closed.

_______________________________ JUSTICE C. PRAVEEN KUMAR

_____________________________________________ JUSTICE VENKATA JYOTHIRMAI PRATAPA Date: 15.02.2023 S.M./.

THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND HON'BLE SMT JUSTICE VENKATA JYOTHIRMAI PRATAPA

Criminal Appeal No. 875 of 2016 (Per Hon'ble Sri Justice C.Praveen Kumar)

Date: 15.02.2023

S.M.