Kiodamanti Ramu, Kakinada., vs State Of Ap., Rep Pp.,
2023 Latest Caselaw 520 AP

      HON'BLE SRI JUSTICE C. PRAVEEN KUMAR

AND THE HON'BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI

Criminal Appeal No. 444 of 2015

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

1) Heard Sri M. Chalapati Rao, learned Legal Aid

Counsel appearing for the Appellant, and Sri S. Dushyanth

Reddy, learned Additional Public Prosecutor appearing for

the State.

2) The sole Accused in Sessions Case No.278 of 2013 on

the file of the VI Additional Sessions Judge, Kakinada, is

the Appellant herein. Originally, the accused was tried for

an offence punishable under Section 302 of the Indian

Penal Code ['I.P.C.']. By its Judgment, dated 15.10.2014,

the learned Sessions Judge convicted the accused under

the said count and sentenced him to suffer imprisonment

for life and to pay a fine of Rs.500/-.

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

i. The accused is the husband of the deceased. P.W.3 is

the daughter of the accused. It is said that the accused

and the deceased were residing in an apartment

complex in which P.Ws. 1 to 3 were also residing in

different flats in the same complex. The deceased used

to reside in an apartment which is near to P.W.1 who is

the younger sister of the mother-in-law of P.W.1. The

accused is a mason by profession attending tiles work. It

is said that he got addicted to vices like drinking alcohol

etc., and thereafter, used to frequently beat the

deceased. The deceased used to work in a port at

Kakinada. In a dispute raised before the elders, the

accused undertook to look after the welfare of his family,

but failed to keep up his promise.

ii. On 05.10.2011 at about 11.00 P.M., the accused came

home, raised a dispute and beat his wife. At that point

of time, the deceased asked the accused to go out of the

house stating that she will maintain herself and her

daughter by attending coolie work. On that, the accused

asked her as to how she will maintain without him and

threatened to kill her. Apprehending danger in the

hands of the accused, the deceased locked the doors of

the house and went to the flat of P.W.1.

iii. On the next day afternoon at about 01.30 P.M., the

accused went to the flat of P.W.1 and demanded the

keys of their flat. On that, P.W.1 informed that she is

not in possession of keys. On hearing the reply, the

accused entered into the flat of P.W.1 and raised a

dispute with the deceased, and in the course of the said

dispute, the accused picked up a mason stick, which

was lying in the house of P.W.1, and beat on the head of

the deceased. On receiving the blow, the deceased fell

down unconscious. On that, the accused fled away with

the mason stick. P.W.1 shifted the injured to the

Government Hospital, Kakinada, where she was

declared dead. On that, P.W.1 lodged a report with

P.W.12, basing on which, a case in Cr.No. 105 of 2011

came to be registered under Section 302 IPC. Further

investigation in this case was taken by P.W.14.

According to him, on 06.10.2011, on receiving the death

intimation of the deceased, he rushed to Government

General Hospital, Kakinada, and received a copy of the

First Information Report and then proceeded to the

scene of offence, which is situated in Flat No.GF2, Black

No.26 of Indira Apartments, Kakinada. In the presence

of P.W.9, he observed the scene of offence and seized

blood stained ceramic tiles and controlled ceramic tiles.

He also prepared a rough sketch of the scene. Ex.P.6 is

the Scene Observation Report and Ex.P.13 is the rough

sketch of the scene. At the scene of offence, he examined

P.Ws. 1 to 6, 11 and 13 and recorded their statements.

On the next day i.e., on 07.10.2011 at 08.00 A.M., he

visited the Mortuary at Government General Hospital,

Kakinada, and in the presence of the mediators,

conducted inquest over the dead body. Ex.P.7 is the

Inquest Report. Before sending the body for Post Mortem

Examination, Mos. 4 to 6 were collected from the body

of the deceased.

iv. P.W.10, who was working as Assistant Professor,

Forensic Medicine, conducted autopsy over the dead

body and issued Ex.P.10 Postmortem Certificate. He

noticed eight anti mortem external injuries on the body

of the deceased. According to him, the injuries are

sufficient to cause death in the ordinary course of

nature. He also states that injuries may be possible if a

person falls with more force on hard surface.

v. On 11.10.2011 at about 3.15 P.M., P.W.14 received

credible information about the accused, and as such, he

along with his team proceeded to Kumbabisekham

Temple, Beach Road, Kakinada, apprehended the

accused and recorded his confessional statement.

Ex.P.8 is the Confessional Statement. Pursuant to the

confessional statement made, the accused lead them to

Vimukthi School situated on the beach road from where

he picked up a mason stick from the bushes. Mo.1 is

the Mason Stick and Ex.P.9 is the Proceedings affecting

seizure. After completing the investigation, P.W.15 filed

a charge sheet, which was taken on file as P.R.C.No.06

of 2012 on the file of the Special Mobile Judicial

Magistrate of First Class, Kakinada.

4) On appearance of the accused, copies of the

documents as required under Section 207 Cr.P.C., were

furnished and since the case is triable by a Sessions Court,

the same was committed to the Court of sessions under

Section 209 Cr.P.C. On appearance of the accused, charge,

as referred to above, came to be framed, read over and

explained to the accused, to which he pleaded not guilty

and claimed to be tried.

5) In support of its case, the prosecution examined

P.Ws. 1 to 15 and got marked Exs.P1 to P.15, besides

marking MOs.1 to 6. After completing the prosecution

evidence, the accused was examined under Section 313

Cr.P.C. with reference to the incriminating circumstances

appearing against the accused in the evidence of

prosecution witnesses, to which he denied, but, however,

no defence evidence was adduced.

6) Relying upon the evidence of P.W. 1 coupled with the

evidence of P.Ws. 2 and 3, the learned Sessions Judge

convicted the accused for the offence punishable under

Section 302 I.P.C. Challenging the said conviction and

sentence, the present appeal is filed.

7) Sri M. Chalapati Rao, learned Legal Aid Counsel

appearing for the Appellant, strenuously contends that

there are number of circumstances to indicate that the

incident did not happen in the manner spoken to by the

prosecution witnesses. In other words, his argument

appears to be that there is no reason for the deceased to go

to the flat of P.W.1. He took us through the evidence of

P.Ws. 2 and 3 to establish the same. In any event, he

would contend that the incident in question occurred in a

spur of moment and the accused never went to the house

of P.W.1 with an intention to do away the deceased.

8) On the other hand, Sri. S. Dushyanth Reddy, learned

Additional Public Prosecutor, opposed the same contending

that having regard to the nature of injuries found on the

body of the deceased, it can be said that number of blows

were given, from which it can be inferred that there was an

intention to cause the death of the deceased.

9) The point that arises for consideration is,

" Whether the prosecution was able to bring home the

guilt of the accused beyond reasonable doubt for the offence

punishable under Section 302 I.P.C.?"

10) The fact that it is a case of homicidal death is not in

dispute. The evidence of Post Mortem Doctor establishes

the same.

11) Coming to the incident in question, the prosecution

mainly relied upon the evidence of P.Ws. 1 to 4. P.W.1 was

examined as an eye witness to the incident, while P.Ws. 2

and 3 came to the scene of offence after hearing the cries of

P.W.1. The evidence of P.W.2, who is residing in flat No.26

of Indira Apartments and whose flat is opposite to the

house of P.W.1, would show that on the date of incident at

about 01.30 P.M., they heard cries from the house of P.W.1

and that herself, her sister and neighbours proceeded

towards the house of P.W.1 and noticed the accused

running away with mason stick through back side of the

balcony. She entered into the house of P.W.1-Sujatha and

noticed bleeding head injury on the deceased and on that,

they shifted the injured to GGH, Kakinada, where the

doctor declared dead. She was cross examined at length

but nothing useful came to be elicited to discard her

testimony.

12) Coming to the evidence of P.W.3, she, in her evidence

categorically states that on the fateful day at 1.30 P.M.,

while she was playing outside the house of P.W.1, heard

cries of her mother. On that, she went into the house of

P.W.1 and saw her mother on the ground with bleeding

injury on the head and her father running from balcony.

She was also subjected to cross examination, but nothing

incriminating came to be elicited to discredit her version in

chief, in fact, it was elicited that the statement was

recorded by the police on the date of incident itself.

Therefore, the presence of the deceased in the house of

P.W.1 with injuries, stands established through the

evidence of P.Ws. 2 and 3.

13) Coming to the attack, P.W.1 was examined as an eye

witness to the incident. She in her evidence speaks about

the dispute which occurred on the previous day night at

about 11.00 P.M., wherein the deceased is said to have

asked the accused to go out of the house and when

questioned as to how she will maintain herself, she seems

to have replied stating that she will maintain herself and

her daughter by doing coolie work. She also claims to have

threatened to do away with her life.

14) It is her evidence that in view of the incident which

occurred on the previous night, she started staying in the

flat of P.W.1 and at about 1.30 P.M., the accused came to

the flat and initially, demanded P.W.1 to hand over the

keys of his flat. When P.W.1 stated that she is not having

the keys, the accused came inside the house, quarreled

with the deceased, picked up a mason stick, which was

lying in the house of P.W.1, and beat her on the head. As a

result of the injuries, the deceased fell down unconscious.

15) From the evidence in chief of this witness, it is clear

that the accused never came there armed with any weapon

and pursuant to a quarrel that ensued between the

accused and the deceased in the house of P.W.1, he picked

up a mason stick, which was lying in the house of P.W.1,

and gave a single blow. P.W.1 was cross examined at

length, wherein it was elicited that at the time of incident,

the daughter of the accused was playing outside the house

with other children. According to her, nearly 50 people

gathered at that time. Insofar as the incident which took

place on the previous day, P.W.1 admits that she has not

informed to the police about the incident which occurred

on the previous day. It was further elicited that the

accused beat his wife with a mason stick on the head from

the front side. Therefore, the argument of the learned

counsel for the Appellant that the evidence of P.W.1 cannot

be believed, being an interested witness, cannot be

accepted. She is a natural witness and her evidence is

consistent all through, about the presence of the deceased

in her house and the accused coming to her house and

attacking the deceased.

16) At this stage, the learned counsel for the appellant

contends that having regard to the manner in which the

incident in question took place, it cannot be said that the

accused had an intention to cause the death of the

deceased.

17) A perusal of the evidence of P.W.1 shows that on the

date of incident, while the deceased was in the house of

P.W.1, the accused came there and asked the deceased to

hand over the keys of their flat and when she refused, a

quarrel ensued and thereafter, the accused picked up a

mason stick, which was lying in the house of P.W.1, and

beat her on the head. As a result of which, she fell down

and died.

18) From the above, it is very clear that if really the

accused had any intention to do away the deceased, he

would have come there with an armed weapon. Further,

the incident took place pursuant to a quarrel between the

accused and the deceased and in the course of quarrel, he

picked up a mason stick, which was lying in the house of

P.W.1, and beat her. Therefore, from the above, it cannot

be said that the accused had an intention to do away the

life of the deceased.

19) At this stage, the learned Addl. Public Prosecutor

contends that having regard to the number of injuries on

the body, it has to be inferred that the accused caused

number of blows on the deceased and had intention to

cause death of the deceased.

20) Insofar as giving number of blows on the head of the

deceased is concerned, there is no evidence on record. On

the other hand, P.W.1 in her evidence categorically states

that the accused gave one blow with a mason stick from

the front side. It may be true that there are number of

injuries on the body, but the Doctor, in his report, mixed

up internal and external injuries, because of which, the

number of injuries on the body were shown as Eight (08) in

number. A reading of the Postmortem Certificate would

indicate that there are number of internal injuries and the

same are an outcome of the external injuries.

21) As observed by the Hon'ble Supreme Court in catena

of judgments, it is not the number of blows which decide as

to whether it is an offence amounting to culpable homicide

or not, but the circumstances under which the incident

has taken place has to be looked into.

22) Taking into consideration the manner and the

circumstances under which the incident took place, it can

be said, without any hesitation, that there was no intention

to cause the death of the deceased. Therefore, we feel that

it is a fit case where the accused can be convicted under

Section 304 Part-II I.P.C. Hence, the nature of offence is

altered from Section 302 I.P.C. to Section 304 Part-II I.P.C.

and the sentence of imprisonment is reduced from Life to

Seven (7) years.

23) In the result, the Criminal Appeal is allowed in part.

The conviction and sentence recorded against the

Appellant/Accused in the Judgment, dated 15.10.2014, in

Sessions Case No. 278 of 2013 on the file of the VI

Additional Sessions Judge, Kakinada, for the offence

punishable under Section 302 of I.P.C. is set- aside and the

Appellant/Accused 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 [07] years. The

period of sentence undergone by the Appellant/Accused as

remand prisoner shall be given set off under Section 428

Cr.P.C. Consequently, the Appellant/Accused shall be set

at liberty forthwith on completion of seven [07] years

imprisonment, if not required in connection with any other

case or crime.

Consequently, miscellaneous petitions, if any, pending

shall stand closed.

______________________________ JUSTICE C.PRAVEEN KUMAR

____________________________________ JUSTICE B.V.L.N. CHAKRAVARTHI

Date:28.12.2022

eha/MNR

HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND

THE HON'BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI

Criminal Appeal No. 444 of 2015

Date: 28.12.2022

eha/MNR