Tammisetty Venkateswarlu, ... vs The State Of A.P., Rep. By P.P., ...
2023 Latest Caselaw 1659 AP

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

CRIMINAL APPEAL NO.342 OF 2010

JUDGMENT:-

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

Accused in Sessions Case No.333 of 2007, on the file of Sessions

Judge, Krishna Division, Machilipatnam ("Sessions Judge" for

short), challenging the judgment, dated 23.07.2009, where

under the learned Sessions Judge, found the accused guilty of

the offence under Section 304 Part-II of Indian Penal Code

("I.P.C." for short) as against the original charge under Section

302 of I.P.C., convicted him and sentenced him to suffer

rigorous imprisonment for five years.

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.333 of 2007 arose out of a

committal order in P.R.C.No.1 of 2006, on the file of Judicial

First Class Magistrate, Jaggaiahpet, pertaining to Crime No.8 of

2006 of Chillakallu Police Station, under Section 302 of I.P.C.

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

the charge sheet filed by the Inspector of Police, Jaggaiahpet

Circle as above, is as follows:

(i) The accused is resident of Mallareddygudem Village,

Mellacheruvu Mandal, Nalgonda District. He is residing at

Chillakallu Village of Jaggaiahpet Mandal, Krishna District along

with his wife and children. Previously, he was convicted in a

theft case.

(ii) One Upputalla Babulu S/o Ramulu (hereinafter will be

referred to as "deceased") is resident of Chillakallu Village and

he is the father-in-law of the accused. L.W.1-Upputalla Srinu,

S/o Babulu is son of the deceased, L.W.2-Upputalla Venkata

Narasamma is wife of the deceased and L.W.3-Tammisetty

Nagalaxmi is daughter of the deceased and wife of the accused

are the direct witnesses to the occurrence. Further L.W.4-Gunja

Venkateswarlu, S/o Tirupataiah and L.W.5-Gunja

Venkateswarlu, S/o Brahmam are the neighbourers and direct

witnesses to the occurrence. L.W.6-Orsu Bujji and L.W.7-

Kunchapu Rajya are the daughters of the deceased. L.W.8-

Tirumalakonda Gopaiah, L.W.9-Gunja Venkateswarlu, S/o

Tirupatiah, L.W.10-Talluri Yerrappaiah and L.W.11-Gunja

Gopaiah are the caste elders, who held panchayat and paid

Rs.100/- as collie to the deceased.

(iii) On 22.01.2006 at 12-00 noon, there was a caste

panchayat held in Vaddera colony of Chillakallu by L.W.8 to

L.W.11 to resolve a dispute between the wife and husband i.e.,

Kunchapu Ramana and Srinu. It was concluded by 3-00 p.m.

The said mediators gave Rs.100/- to the deceased as collie, as

he made arrangements for collecting the elders from both

parties. On the way to his house, the accused, who is the son-

in-law of the deceased, stopped him and asked him to return

Rs.100/- to him, for which deceased refused. Then, the accused

grew wild, caught hold of him and lifted the deceased into the

air and thrown him on a gravel heap. When the deceased tried

to get up, the accused again lifted him and thrown him on the

granite stones heap resulting into the death of the deceased at

the spot. It was witnessed by L.W.1 to L.W.5. L.W.1 turned up

to Chillakallu Police Station on 22.01.2006 at 8-00 p.m., and

presented a written report to L.W.15-Sub-Inspector of Police.

L.W.15-Sub Inspector of Police, Chillakallu Police Station

registered it as a case in Crime No.8 of 2006 under Section 302

of I.P.C. and submitted copies of F.I.R. including express F.I.R.

to all concerned. L.W.16-Inspector of Police took up

investigation and visited the scene of offence and examined the

same in the presence of L.W.12-Deenavahi Venkata Seshagiri

Rao and L.W.13-Rupana China China Veeraiah, the mediators.

He prepared rough sketch at the scene of offence. He held

inquest over the dead body of the deceased in the presence of

inquest panchayathdars i.e., L.W.12 and L.W.13. He forwarded

the dead body to L.W.14-medical officer with a request to

conduct autopsy and issue postmortem certificate. During

investigation, he examined L.W.1 to L.W.11 and recorded their

statements. On 24.01.2006 at 1-00 p.m., Inspector of Police

arrested the accused at R.T.C. bus stand, Jaggaiahpet and

forwarded him for judicial remand. The Medical Officer

conducted autopsy over the dead body of the deceased and

opined that the death of the deceased is due to asphyxia due to

Haemothorax. Hence, the charge sheet.

5) The learned Judicial Magistrate of First Class,

Jaggaiahpet, took cognizance under Section 302 of I.P.C.

6) After appearance of the accused and after complying

the formalities under Section 207 of the Code of Criminal

Procedure ("Cr.P.C." for short), P.R.C.No.1 of 2006 was

committed to the Court of Sessions under Section 209 of

Cr.P.C., as such, it was numbered before the learned Sessions

Judge, Krishna at Machilipatnam.

7) On appearance of the accused before the learned

Sessions Judge by following the procedure contemplated under

Section 228 of Cr.P.C., the charge under Section 302 of I.P.C.

was framed and explained to the accused in Telugu, for which

he pleaded not guilty and claimed to be tried.

8) During the course of trial, on behalf of the

prosecution, P.W.1 to P.W.8 were examined and Ex.P.1 to

Ex.P.6 were marked. After closure of the evidence of the

prosecution, the accused was examined under Section 313 of

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

in the evidence let in, for which he denied the same and stated

that a false case is foisted against him and he has no defence

witnesses.

9) The learned Sessions Judge on hearing both sides

and on considering the oral as well as documentary evidence,

found the accused for the offence under Section 304 Part-II of

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

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

Accordingly, he convicted the accused under Section 304 Part-II

of I.P.C. and after questioning him about the quantum of

sentence to be imposed, sentenced him to suffer rigorous

imprisonment for five years and acquitted him for the charge

under Section 302 of I.P.C. Felt aggrieved of the conviction and

sentence as above, the unsuccessful accused in the above said

Sessions Case, filed the present Criminal Appeal.

10) Now, in deciding the Criminal Appeal, the points for

determination are as follows:

(1) Whether the prosecution before the Court below proved that on 22.01.2006 after 3-00 p.m., at Vaddera Colony, Chillakallu Village, the accused lifted Upputalla Babulu S/o Ramulu into air and thrown him on the gravel heap for twice, as such, deceased died?

(2) Whether the prosecution before the Court below proved the offence of culpable homicide not amounting to murder under Section 304 Part-II of I.P.C. beyond reasonable doubt?

Point Nos.1 and 2:

11) At the outset, this Court would like to make it clear

that as against the judgment of the learned Sessions Judge,

exonerating the accused under Section 302 of I.P.C. and

convicting him under Section 304 Part-II of I.P.C., the

prosecution did not prefer any appeal. Hence, the scope of this

appeal is confined to the points as above.

12) P.W.1 is the defacto-complainant and son of the

deceased. In brief, he testified that originally the accused

belonged to Nalgonda District and his wife is no other than the

sister of him i.e., P.W.2 and the accused is his brother-in-law

and he settled down at his village and the accused and his wife

Naga Laxmi used to reside with their parents. He (P.W.1) is

residing in the same colony, but in a different house. As the

accused was convicted in Nalgonda District, he shifted his family

to the parents of him (P.W.1). On the date of incident, caste

elders conducted a mediation to settle a matrimonial dispute

between the wife and husband, but he did not remember their

names. Panchayat was concluded by 3-00 p.m. Caste elders

paid Rs.100/- to his father for collecting the caste elders for the

mediation. Having collected the amount, his father started

returning to the house. Then, the accused asked his father to

give hundred for which his father refused claiming that that is

his amount. Then, the accused lifted his father and hurled him

on a gravel heap nearby. When he fell on the gravel heap and

attempting to get up, the accused again lifted him and again

hurled him on concrete heap (Kankara rallu). At the time of the

incident, they were at a distance of 10 to 15 yards. On

witnessing the incident, he, his mother and his younger sister

Naga Laxmi rushed towards the place of offence crying that their

father was being killed. The accused fled away from the place.

They found their father died. They found swelling on his lower

abdomen and swelling of his testicles. Then, he approached the

elders and informed the incident to them and from there he

went to Chillakallu Police Station and lodged a complaint at 7-30

p.m. Ex.P.1 is his report. He is an illiterate. On the next day

morning, police came to the scene and recorded his statement.

13) P.W.2, the daughter of the deceased, relating to the

offence in question, testified that on the date of incident, a

panchayat by the caste elders took place between 12-00 noon

and 3-00 p.m. After the panchayat, her father and the accused

were returning to home. Her father was paid Rs.100/- by the

caste elders towards coolie for calling the caste elders for

mediation. The accused i.e., her husband asked her father to

give hundred to him for which her father refused. Then, her

husband lifted her father and thrown him on the gravel heap.

When her father was getting up, the accused again lifted him

and again thrown him on granites heap. They witnessed the

same from the distance of 15 yards. They started running

towards the place of occurrence by shouting "Champetthunnavu

emiti". On seeing them, the accused fled away from there. They

found her father died. They found swelling on abdomen of her

father. P.W.1 and their mother rushed towards place of

occurrence. On the next day, police examined her.

14) P.W.3, another direct witness to the occurrence with

regard to the incident in question, deposed that on the date of

incident, a panchayat was held between the caste elders

concerning a marital dispute between the spouses. It was

happened between 12-00 noon to 3-00 p.m. Elders paid

Rs.100/- to the deceased for calling the caste elders to attend

the caste panchayat of the village. He took the amount and

started returning to the house. The accused asked the deceased

to give that amount, for which the deceased refused to give.

Then, the accused lifted the deceased and thrown him on the

gravel heap (matti gravel) which consists of stones. When the

deceased got up, again the accused lifted him and thrown him

on the concrete stones. Then, P.W.1, P.W.2 and the wife of the

deceased Venkata Narasamma rushed towards the place of

offence shouting "champesthunnadu champestunnadu" (killing

killing) from a distance of 10 yards and reached the place of

occurrence. On seeing them, the accused fled away.

15) The prosecution examined P.W.4, who deposed that

he acted as caste elder in their community. Elders convened a

panchayat in connection with the marital dispute between

Ramana and Srinu on 22.01.2006. He, Gunja Venkateswarlu,

Talluri Yerrappaiah and Gunja Gopaia have acted as caste

elders. It was commenced at 12-00 noon and concluded by

3-00 p.m. The deceased was their caste bantrothu and he used

to call the caste elders whenever caste mediations were being

held. In connection with caste panchayat on 22.01.2006 they

paid Rs.100/- to the deceased towards coolie for calling the

elders. The said caste bantrothu by name Babulu is no more.

Two hours after the conclusion of the panchayat, they learnt

that he died. He went to the scene of offence and found his

dead body. Police examined him.

16) P.W.5 is the panchayatdar, who is the mediator to

the scene observation report and also the inquest. P.W.6 is the

Medical Officer, who conducted autopsy over the dead body of

the deceased. P.W.7 is the Sub Inspector of Police, who received

Ex.P.1 and registered FIR. P.W.8 is the Investigating Officer.

17) Sri M.S.P. Reddy, learned counsel, representing Sri

Challa Srinivasa Reddy, learned counsel for the appellant, would

contend that the testimony of P.W.1 and P.W.2, the son and

daughter of the deceased, is interested in nature. P.W.1 and

P.W.2 are the planted witnesses. The name of P.W.2 was not

there in Ex.P.1 report. The name of wife of the deceased was

there in Ex.P.1. The prosecution did not examine the wife of the

deceased for the reasons best known to them and planted P.W.1

and P.W.2. P.W.3 was also planted to support the evidence of

P.W.1. The learned Sessions Judge convicted the accused basing

on the interested testimony. There was a delay of about four

hours in lodging Ex.P.1 which is not explained by the

prosecution. There were discrepancies in the evidence of the

prosecution witnesses in spite of which, the learned Sessions

Judge erroneously convicted the accused, as such, the appeal is

liable to be allowed.

18) Sri Y. Jagadeeswara Rao, learned counsel,

representing the learned Public Prosecutor, would contend that

as the wife of the deceased was won over by the deceased,

prosecution did not examine her. A memo was also filed before

the learned Sessions Judge to that effect. P.W.1 was author of

Ex.P.1 and he was not a planted witness. The names of all the

direct witnesses need not be mentioned in Ex.P.1. The learned

Sessions Judge rightly negatived the contention of the accused

before the Court below. The evidence of P.W.1 had support from

Ex.P.1 and P.W.2 and P.W.3 corroborated the evidence of P.W.1

and the delay in lodging Ex.P.1 was found to be satisfactorily

explained by the prosecution according to the learned Sessions

Judge in the judgment and there is no dispute that the accused

used to reside in the village of the deceased along with the

deceased and P.W.2 and the learned Sessions Judge rightly

convicted and sentenced the accused under Section 304 Part-II

of I.P.C., as such, there are no grounds to interfere with the

judgment of the learned Sessions Judge.

19) Turning to the evidence of P.W.1, as evident from

the cross examination part, the accused elicited from P.W.1 that

there was no document to prove about the fact that his father

was appointed as a caste servant. It is to be noticed that to

prove the fact that the deceased used to act as caste servant

and used to call elders in connection with the caste disputes,

there is evidence of P.W.4, one of the caste elders. There need

not be any document to prove that the deceased worked as kula

bantrothu i.e., the caste servant in the village, who was

supposed to call the mediators to the caste meetings, etc.

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

the accused and his wife was not living amicably. The accused

used to consume alcohol and beat his wife and used to create

nuisance in the street. On the date of incident also, the accused

consumed alcohol. His father also used to consume alcohol.

Witness volunteers that on that day his father did not consume

alcohol. He denied that his father consumed alcohol on that day

also. On occasions, the accused and his parents used to

consume alcohol together. Gravel heap is near the baddikottu

center. The gravel heap and granite stones would be at a height

of 2 ½ feet. He stated the same to the police. He denied that

he omitted to state the said fact before the police. He deposed

that he first saw his father at the place of incident at a distance

of 15 to 20 yards. It was about 3-30 p.m. or 4-00 p.m., the

accused lifted his father and thrown him in gravel heap. He

denied that he does not know anything about the occurrence

and he is at a distance. He denied that the accused was not

capable of lifting of the deceased and hurling him on the granite

stones heap. He denied that his father consumes alcohol

everyday and on that day also he consumed alcohol and that he

died on account of consuming of alcohol and as there were

differences between the accused and his wife, he is implicated

falsely.

21) It is to be noticed that there is a clear whisper in

Ex.P.1 that there was a gravel heap at the place of occurrence

on which the deceased was thrown by the accused twice. In

cross examination, he detailed out that there were also a granite

stones. He deposed that he did not state so before the police. It

is to be noticed that the answers that are elicited from the

mouth of a particular witness in cross examination in a case

cannot be taken as omissions. It is not as though P.W.1 deposed

the existence of granite heap in the chief examination. On the

other hand, when the accused got elicited certain answers in

cross examination, he deposed the same which cannot be taken

as an omission. Apart from this, as evident from Ex.P.6, rough

sketch, the gravel heap was clearly shown. During the course of

cross examination of investigating officer, nothing was

suggested to him that there was no gravel heap. Hence, the

evidence of P.W.1 cannot be taken as an omission as to the

existence of the gravel heap at the place of occurrence. The

answers in cross examination as to the existence of gravel heap

or the granite heap cannot be taken as omission.

22) Coming to the evidence of P.W.2 in cross

examination, she deposed that the place on which the accused

thrown her father on the gravel would be from 10 to 15 yards

from their house. Elders used to give small quantity of alcohol

at the time of mediation. She denied that she does not know

anything about the occurrence and that she does not know that

the accused demanded her father to give hundred rupees.

Witness volunteers that she observed the accused putting his

hand in the pocket of her father. She witnessed it from a

distance of 15 yards standing at their house. She denied that

she did not witness anything and that she is deposing false.

23) Coming to the evidence of P.W.3, another direct

witness to the occurrence, he was also cross examined with

regard to the heap of gravel stones at the scene of occurrence

and to the answers spoken by P.W.3 minutely with regard to the

existence of two heaps i.e., one is gravel stone heap and

another is concrete stones, no contradiction is suggested to him.

Nothing is elicited from the cross examination of P.W.3, the

direct witness, suggesting any doubtful circumstances as

regards his presence.

24) The very contention of the accused before the Court

below is that P.W.1 and P.W.2 were planted witnesses. It is very

difficult to accept such a contention. P.W.1 was a witness to the

occurrence and author of Ex.P.1. As evident from the judgment

of the learned Sessions Judge, though the wife of the deceased

was cited as one of the witnesses to the occurrence, she was

given up by the prosecution on the ground that she was won

over by the accused. For the non-examination of the wife of the

deceased, no adverse inference can be drawn. The prosecution

cited P.W.2 as one of the direct witnesses to the occurrence.

According to the evidence of P.W.1 on seeing the incident, he,

his mother and his younger sister Naga Laxmi rushed towards

the place of occurrence. Though Ex.P.1 did not disclose that

P.W.2 also rushed to the scene of occurrence along with P.W.1,

but Ex.P.1 cannot be taken as encyclopedia and it need not

contain each and every minute details of the presence of

witnesses. Apart from this, the answers that are elicited from

the mouth of P.W.2 go to show that her house is located hardly

at a distance of 10 to 15 yards from the place of occurrence.

Therefore, it is a quite natural for P.W.2 to witness the

occurrence which was within her view when she was standing at

her house. The minute details spoken to by P.W.2 during the

cross examination that she found the accused putting his hand

into the pocket of her father shows bonafidies on the case of the

prosecution that P.W.2 was also a witness to the occurrence.

Hence, the contention of the accused before the Court below

that P.W.1 and P.W.2 were planted witnesses is not tenable.

25) As seen from the evidence of P.W.3, he spoken that

he witnessed the occurrence. His evidence is fully convincing. He

had no enmity with the accused. He was a neighbor to the house

of P.W.1 and P.W.2. He was resident of that locality. The

probing cross examination of P.W.3 was done and he withstood

the probing cross examination. The evidence of P.W.3 is further

lending an assurance to the case of the prosecution.

26) The evidence of P.W.1 has corroboration from the

contents of Ex.P.1.

27) Coming to the cross examination of P.W.7, the

investigation officer, he deposed it is true that P.W.1 has stated

in his Section 161 of Cr.P.C. statement that his brother-in-law

with both his hands lifted his father and hurled on gravel gutta

situated nearby their house. It is true he has stated that himself

and his mother Venkata Narasamma while raising shouts ran

towards the place of occurrence. It is true that he has omitted

to mention that his younger sister P.W.2 was also accompanying

them. It is to be noticed that absolutely P.W.1 was not at all

cross examined with regard to the above answers suggested to

P.W.8, the investigating officer. Absolutely, it is not the defence

of the accused before the Court below that P.W.1 did not state

before police that his brother-in-law with his both hands lifted

his father and hurled on gravel gutta situated nearby the house.

Hence, the answers that were suggested to P.W.8, investigating

officer, had no consequences at all in the absence of challenging

the testimony of P.W.1 by suggesting any omissions and

contradictions. As this Court already pointed out Ex.P.1 cannot

be taken as an encyclopedia to contain each and every aspect of

the occurrence including the details of the witnesses. As this

Court already pointed out P.W.2 was a natural witness to the

occurrence as her house was located within a short distance of

10 to 15 yards from the scene of offence. Hence, the cross

examination of P.W.8 regarding the above had no merits in my

considered view.

28) The accused agitated before P.W.8, investigating

officer, that P.W.2 did not state in her Section 161 of Cr.P.C.

statement that after the elders panchayat was over, the

deceased and the accused started returning to the house from

the place of the panchayat. It is to be noticed that during the

course of cross examination of P.W.2, she was not suggested

that she did not state before the police that after the panchayat,

deceased and the accused started returning to the house.

However, the evidence of P.W.1 to P.W.3 as regards the act of

the accused in insisting the deceased to pay back Rs.100/- to

him is totally consistent. It is immaterial whether the accused

started from the panchayat along with the deceased while

returning to the house or at the place of occurrence intercepted

the deceased. Hence, the evidence of P.W.2 that after the

panchayat is over, the accused and the deceased started

returning to the house cannot be taken as omission.

29) The evidence of P.W.1 to P.W.3 is totally consistent

and it is inspiring confidence in the mind of the Court.

30) Coming to the delay in lodging Ex.P.1, the time of

offence was about 3-30 pm. or 4-00 p.m. After the incident,

according to the case of the prosecution and the evidence of

P.W.1 and P.W.2, they informed the incident to the elders.

Admittedly, according to P.W.1 at about 7-30 p.m., they lodged

a report on the date of incident. According to Ex.P.1,

endorsement, it was registered at 8-00 p.m. The accused was

no other than the son-in-law of the deceased, who was residing

along with the deceased and his wife in the house. The delay of

three hours in lodging Ex.P.1 cannot be taken as fatal to the

case of the prosecution and the said delay is bound to be

happened in the light of the facts and circumstances. The

learned Sessions Judge in this regard rightly appreciated the

evidence on record. As rightly held by the learned Sessions

Judge, P.W.1 was an illiterate witness. The facts and

circumstances are such that as P.W.1 was no other than the son

of the deceased, he was not supposed to keep the dead body at

the place of occurrence and to rush to the police station. The

facts and circumstances are such that after consultations with

the villagers and caste elders and after become free from the

grossly incident, P.W.1 got drafted the report with some bodies

help and later lodged the same with the police.

31) Though there were some disputes between the

accused and his wife i.e., P.W.2, but there is no dispute that the

accused and his wife used to reside along with the parents of

P.W.1 in the same house. Under the circumstances, the delay in

lodging Ex.P.1 cannot be taken as a fatal to the case of the

prosecution.

32) It is also the contention of the accused before the

Court below that the deceased died on account of the fact that

he consumed alcohol and he was implicated falsely taking

advantage of the disputes. It is very difficult to accept such a

contention.

33) There is evidence of P.W.6, the Medical Officer to the

effect that on 23.01.2006 he conducted postmortem

examination over the dead body of the deceased from 4-00 p.m.

to 6-00 p.m. He did not notice any external injuries on the dead

body. When he opened the chest cavity, he found blood in the

chest cavity. The deceased died due to asphyxia due to haemo

thorax. He mentioned the same in his report, Ex.P.4. He

deposed that the collection of blood in the chest cavity is

possible when a person was hurled on heap of stones or rough

surface. He found redness on testicles but it is not an

abnormality. He denied that his opinion is not correct. In cross

examination he deposed that he did not preserve the contents of

the stomach. He volunteers that if the police asked, they would

have preserved it. It is to be noticed that the line of the defence

of the accused is that the deceased died on account of

consumption of alcohol. But, as evident from the opinion of

P.W.6, on opening thorax, he found the blood in the chest cavity

and it was due to the fact that the deceased was hurled on the

heap of stones on the rough surface. Hence, the contention of

the accused that the deceased died on account of consumption

of alcohol is not tenable. Even assuming for a moment, the

accused and the deceased consumed alcohol on the date of

incident, but it cannot be held that the deceased died on account

of consumption of alcohol. The facts and circumstances are such

that the accused in aggressive condition as the deceased did not

pay Rs.100/- grew wild lifted him and hurled him on the heap of

stones twice which resulted into the death of the deceased.

Hence, the contention of the accused in this regard is not at all

tenable.

34) There is evidence of P.W.5, the panchayatdar to the

observation report and inquest panchanama to the effect that

the police observed the scene of offence on the next day in the

presence of mediators and conducted inquest over the dead

body of the deceased. There is evidence of P.W.7 to speak to

the fact that basing on the report of P.W.1, he registered FIR

and copies of FIR to all concerned.

35) The evidence of P.W.8, the investigating officer,

shows the fact that during the course of investigation he

examined all the witnesses to the occurrence and observed the

scene of offence, conducted inquest over the dead body of the

deceased in the presence of witnesses and got the dead body

examined through the medical officer for the purpose of

postmortem. During the course of cross examination, it is

evident that the house of P.W.3 is situated nearby the house of

the deceased. There is nothing in the cross examination of

P.W.8, pointing out any irregularities in the investigation.

Hence, the evidence of P.W.8, the investing officer, is fully

convincing. He denied that he arrested the accused on the same

date of incident. It is to be noticed that according to his chief

examination, as the accused was found absconding, he arrested

the accused on 24.01.2006. On the other hand, the contention

of the accused that he was arrested on the date of offence itself

is found not convincing. Having regard to the above, absolutely,

I do not find any merits in the contention of the accused that he

was taken into custody on the date of offence itself.

36) A perusal of the judgment of the learned Sessions

Judge reveals that he duly applied his mind and looked into

various contentions of the defence counsel and rightly

appreciated the evidence on record with sound reasons. In my

considered view, P.W.1 to P.W.3 were the direct witnesses to

the occurrence whose evidence is inspiring confidence in the

mind of the Court. Hence, the prosecution before the Court

below proved beyond reasonable doubt that on the date of

incident, the accused lifted the deceased twice and thrown him

into heap of gravel stones which resulted into his death. The

learned Sessions judge as against the charge under Section 302

of I.P.C. convicted and sentenced the accused under Section

304 Part-II of I.P.C. with reasons and the judgment of the Court

below in this regard exonerating the accused under Section 302

of I.P.C. is not under challenge.

37) Having regard to the above, I am of the considered

view that the prosecution before the Court below proved beyond

reasonable doubt that the accused caused the death of the

deceased on 22.01.2006. Hence, I see no grounds to interfere

with the conviction and sentence imposed against the accused

by the learned Sessions Judge.

38) In the result, the Criminal Appeal is dismissed and

the judgment of the learned Sessions Judge, Krishna at

Machilipatnam, dated 23.07.2009 in S.C.No.333 of 2007 shall

stand confirmed.

39) 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 30.03.2023 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. 24.03.2023.

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

CRL. APPEAL NO.342 OF 2010

Date: 24.03.2023

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