Andhra Pradesh High Court - Amravati

Upputholl Srinivasa Rao vs The State Of Ap on 22 January, 2024

Author: U. Durga Prasad Rao

Bench: U. Durga Prasad Rao

      THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
                          AND
     THE HON'BLE SMT JUSTICE KIRANMAYEE MANDAVA

                    Criminal Appeal No.1840 of 2018

JUDGMENT:

(Per Hon'ble Sri Justice U. Durga Prasad Rao)

Challenging the judgment dated 04.06.2018 in S.C.No.381/2015

passed by the learned X Additional Sessions Judge, Gurajala convicting

the A1 to A5 for the offence punishable under Section 302 IPC and

sentencing them to undergo imprisonment for life and to pay fine of

Rs.10,000/- each, A1 to A5 filed the instant criminal appeal.

2. The matrix of the case, which led to the conviction and sentence

of accused can be pithily stated thus:

(a) The prosecution case is that A1 to A5 are interrelated i.e., A1

and A3 are sons of A2; A4 is maternal uncle of A1; A5 is the son of A4

and they are all residents of Brahmananda Reddy colony, Pidugurall

within the local limits of Piduguralla P.S.

(b) The deceased Peda Anjaneyulu and PW2 K.Anjamma are the

parents in law of A1 Guravamma as he married their daughter

U.Durgamma. A1 and Guravamma got four daughters viz., Anuradha

(PW3), Renuka (PW4) Kusuma and Harika. During fifth delivery

Guravamma died and thereafter, A1 left his daughters with

grandparents i.e., deceased and PW2 and married another lady and

staying at Hyderabad by doing masonry works and occasionally he was

visiting Piduguralla to see his parents. The deceased and PW2

requested A1 several times to take responsibility of his children as they

attained age of marriage. However he paid a deaf ear and so the

deceased, PW2 and their son PW1 performed the marriages of PW3-

Anuradha and PW4-Renuka with their money. The marriages of

Kusuma and Harika are to be performed.

Piduguralla and on knowing this fact, the deceased and PW2 along with

the four daughters of A1 went to the house of A1 at Brahmananda

Reddy Colony in the night after 07:00 PM and there the deceased

explained his poor financial condition and requested A1 to take

responsibility of his two unmarried daughters Kusuma and Harika.

However, A1 bluntly refused and thereby a gallata occurred and A2 to

A5 joined A1 and all of them beat the deceased with sticks on his head.

When he fell down they fisted on his chest knowing well the fact that

the deceased underwent bypass surgery some time back. As a result,

the deceased fell down and died instantaneously. The accused fled

away. PW 2 contacted PW1 on phone and PW1 rushed to the spot and

found the deceased lying in unconscious state. Immediately PW1 and

LW5- Shaik Saida shifted the deceased in an auto to Vijaya Sai

Specialty Hospital at Piduguralla where the Doctor on examination

declared that the deceased was brought dead to the Hospital. Thus all

the accused were responsible for the death of deceased.

(d) On the night of 09.02.2014 at about 11:00 PM PW1 went to

Piduguralla PS and presented Ex.P1- written report to PW13-Inspector

of Police, Piduguralla PS and he registered a case in Crime

No.244/2014 U/s 302 r/w 34 IPC and issued Ex.P5 - express FIR and

conducted investigation. He proceeded to Vijaya Sai Speciality

Hospital, Piduguralla and shifted the dead body to Government

Hospital, Gurajala. On 10.12.2014 he secured the presence of PW9 and

LW11 and observed the scene of offence and recorded the Ex.P2 -

scene of observation report and seized MO.1- sticks (3 Nos). He

prepared Ex.P6- rough sketch of scene of offence. Thereafter, he held

inquest on the dead body at Government Hospital, Gurajala in the

presence of PW10, LW13 - Shaik Subhani and LW14- G. Ramesh and

prepared Ex.P3 - inquest report. Then he recorded the statements of

PWs1 to 4 and LW5- S. K Saida. He got photographs of the dead body

under Ex.P7 (Photos). On his requisition PW12 conducted postmortem

over the dead body of the deceased and later issued Ex.P4-postmortem

certificate wherein he mentioned that he found (1) contusion over

middle of forehead and (2) multiple contusions over the middle of the

chest. He also noticed fracture of fronto parietal bone. So far as cause

of death is concerned, he mentioned that the deceased died of shock

and hemorrhage due to head injury.

(e) Further investigation in this case was done by the PW14 and

on 17.12.2014 in the presence of mediators PW11 and LW17-B.

Venkaiah he arrested the accused under the cover of Ex.P8-meditors

report and sent them for judicial remand and after completion of

investigation he filed charge-sheet against A1 to A5 for the offence

punishable U/s 302 r/w 34 IPC.

(f) On appearance of accused the trial Court framed charge U/s

302 r/w 34 IPC and the accused denied the charge and claimed for trial.

(g) During trial, on behalf of prosecution PW1 to 14 were

examined and Ex.P1 to P8 were marked and MO1 - sticks (3 Nos)

were exhibited.

(h) After closure of prosecution evidence, the accused were

examined U/s 313 Cr,P.C and the incriminating circumstances deposed

by the prosecution witnesses were explained and the accused denied the

same.

(i) On behalf of accused DW1 and 2 were examined.

PROSECUTION EVIDENCE:

3. Before trial Court, the oral and documentary evidence of

prosecution i.e., PWs 1 to 14, Ex.P1 to P8 and MO.I as well as the

defence evidence of DW1 and 2 came up for consideration.

4. Prosecution evidence is concerned, PWs 1 to 6 are the eye

witnesses; PW7 and 8 are the witnesses to speak of the animus of

accused towards deceased and the declaration of intention of A4 and

A5 to kill deceased; PW9 and LW11 - B. Ananda Rao were the

mediators in whose presence the police observed the scene of offence

and prepared Ex.P2 - scene of offence observation report and seized

MO.1 sticks; PW10 is an inquest witness; PW11 is a witness for the

arrest of the accused by the police; PW12 is the postmortem Doctor:

PW13 is the Inspector of Police who registered FIR in Crime

No.244/2014 and conducted part investigation; PW14 is the Inspector

of Police, Piduguralla PS who also conducted part investigation and

arrested the accused and laid charge sheet.

(a) PW1 is the son of deceased. He stated that his elder sister

Guruvamma was the wife of A1 and they got four daughters and during

5th delivery she died and ever since A1 left his daughters with their

grandparents. A1 married another lady and staying at Hyderabad

without caring for his daughters. PW1 and his parents performed the

marriages of his nieces - PW3 and PW4. Regarding the incident, he

deposed that around 07:00 or 8:00 PM on 09.12.2014 while he was at

Bazaar, PW2 - his mother informed him by phone that A1 came from

Hyderabad and herself, the deceased and 4 daughters of A1 went to his

house at Piduguralla and asked him to take responsibility of his

daughters and that all accused beat his father and caused injuries. On

hearing the same, he rushed to house of A2 and found his father lying

down with injuries in unconscious stage. He shifted his father to

Vijaya Sai Hospital, Piduguralla in an auto where the doctor after

examination declared him as brought dead. On that night at about

11:00 pm he went to Piduguralla PS and gave Ex.P1 report.

In the cross examination he denied the suggestion that none of

the accused beat his father and he died of his illness and a false case

was foisted.

5. PWs 2 to 4 deposed in similar lines with regard to A1 leaving his

daughters with grandparents after the death of his wife and their

bringing up them and performing marriages of PWs3 and 4.

(a) With regard to the incident, they deposed that on coming to

know that A1 came from Hyderabad and available at his father's house,

the deceased and PWs 2 to 4 went to the house of A1 at about 07:00

PM and there the deceased and PW1 asked A1 to take the responsibility

of his unmarried daughters and perform their marriages but he bluntly

refused and picked up quarrel with them and in the meanwhile, all the

accused who were there at the house of A2 gathered at the scene and all

of them beat the deceased with sticks on his head and fisted on his

chest knowing that he underwent bypass surgery some time back. The

deceased fell on the ground and became unconscious. PW2 informed

by phone about the incident to PW1 and he rushed and shifted the

deceased to the hospital where he was declared dead.

(b) During cross-examination, PW2 stated that even prior to the

incident four or five times she asked A1 to take care of his daughters

but he did not oblige. When they went to the house of A2, A1 was

inside the pancha while A2 was sitting on a chair on the road in front of

his house. A2 called his son A1 outside and then all of them asked A1

to take responsibility of his daughters. While they were quarreling, A3

to A5 came there. The accused picked up the sticks from the heap of

centering material placed in front of the house of A3. She stated that

the incident took place on the road in front of the house of A2. The

incident was occurred within half an hour. She stated that all the

accused rounded her husband and beat him. Within 10 minutes after

her call, PW1 came to the scene. She denied the suggestion that

accused did not beat the deceased and the deceased sat on the pial and

accidently fell down and suffered injuries.

6. PW5 and PW6 are also said to be eye witnesses as both of them

went to the street where the accused were residing to purchase a site.

While they were waiting for the arrival of the owner of the site, they

have seen the galatta between the accused and the deceased. PW5

sprinkled water on the face of deceased but he did not gain

consciousness.

The above are the star witnesses for prosecution.

7. DEFENCE EVIDENCE :

So far as defence witnesses are concerned, DW1 is the wife of

A5. She stated that on the night of incident the deceased came to the

house of A2 to meet A1. The house of A2 is opposite to the house of

A5. Deceased and A1 spoke for some time and later a dispute arose

between them and in that melee, deceased beat A1 with the chair on

which A2 sat. Then A2 and his sister Santamma took the deceased to

the house of Vupputolla Anjaneyulu which is by the side of the house

of DW1 and made him sit on the pial. At that time, PW2 came there

and she caught hold the collar of A1 and beat him with a cheppal. On

seeing the same, the deceased got up from the pial by scolding A1 and

he fell down on the nearby stone and lost consciousness. This witness

tried to give him some water but he did not gulp and she sprinkled

water on his face and rubbed his foot and palm. Meanwhile PW1 came

and beat A1. Later deceased was taken to hospital in an auto. She

stated that at the time of incident A1 and A2 alone were present and

they did not beat the deceased.

In the cross examination she denied the suggestion that all the

accused were present and beat the deceased.

(a) DW2 Kandragunta Tirupathi Rao who was a driver and

resident of Brahmananda Reddy colony deposed that he know the

accused and deceased. Regarding incident, his version is that he was

present in his house and heard the shouts of the deceased and A1. This

witness went outside and saw the deceased beating A1 with a chair and

in the meanwhile A2 and his sister Santamma i.e., wife of A4 tried to

calm-down the deceased and seated him on the pial of the house of

Upputhola Anjaneyulu. In the meanwhile, PW2 came there and caught

hold of the collar of A1 and slapped him with her cheppal and the

deceased also by raising cries got off from the pial and fell down on the

stones and lost his consciousness. DW1 and children of A1 sprinkled

water on deceased and in the meanwhile PW1 came there and beat A1.

Thereafter PW1 and his relatives took the deceased who was in

unconscious position to hospital and later the witness came to know

that the deceased died. This witness avouched that none of the accused

beat the deceased in the incident rather deceased, PWs1 and 2 beat the

accused.

(b) In the cross examination he stated that he did not know the

reason for dispute. Later he came to know that the dispute occurred

regarding the children of A1. He further stated that at the time of

incident the daughters of A1 were present. At the time of incident 50

persons gathered. A3 to A5 were not present at the time incident. He

stated that the deceased beat the A1 with the chair on his shoulder and

A1 tried to protect himself with his hands and thereby he sustained

injuries on his hands and shoulder. He also stated that PW2 beat A1

with a cheppal on his cheek. PW1 also beat A1 with hands and he gave

five or six blows to A1. He denied the suggestion that he was not a

resident of Brahmananda Reddy colony and did not witness the dispute

and he was speaking falsehood.

8. The above is the evidence led by the defence.

JUDGMENT OF TRIAL COURT:

9. The trial Judge having evaluated the above evidence, came to the

conclusion that the evidence of PWs 2 to 4 the eye witnesses is

consistent as they deposed that the accused beat deceased with sticks

and fisted on his chest and thereby he fell down and became

unconscious. He observed that the evidence of eye witness i.e., PW 2

to 4 is consistent, cogent and credible and same cannot be discarded on

the ground that they are interested witnesses. He also observed that

merely because of some investigative defects, such as the admission of

PW13 and 14 - the IOs that they have not forwarded MO.1 - sticks to

the Court and PW13 did not take photographs etc., the entire

prosecution case cannot be discarded and on the other hand, in view of

the judicial principles, there is a legal obligation cast on the Court to

examine the prosecution evidence dehors such lapses of investigation

and find out whether the rest of evidence is reliable or not and if so, to

what extent and whether such lapses effected the object of finding of

truth. Thus keeping aside the defects in the investigation as evolved in

the evidence of IOs, the trial Court sought for the corroboration of eye

witness account of PWs 2 to 4 through the medical evidence of PW12.

The PW12-postmortem doctor deposed that he found two injuries i.e.,

(1) contusion over the middle of forehead (2) multiple contusions on

middle of chest to left lateral to chest, fracture of fronto parietal bone of

the skull. He also stated in the cross-examination that the weapons like

sticks and rods can produce the injury No.2 i.e., multiple contusions.

Thus it would appear, the trial Court found corroboration to the ocular

evidence that the accused have attacked the deceased with sticks and hit

on his head, through the medical evidence. In that process, the trial

Court negatived the contention of the accused that contrary to the

evidence of eye witnesses that all the accused attacked and beat the

deceased with sticks on his head, the medical witness found only one

head injury and therefore their evidence is false. The trial Court

observed that though PW 2 to 4 deposed that all the accused beat the

deceased with sticks, they did not specifically state which of the

accused beat the deceased on the head. Thus the trial Court has

accepted the evidence of PW 2 to 4 that all the accused attacked the

deceased with sticks though their evidence fell short of specifying

which of the accused gave fatal blow on the head of the deceased.

(a) The judgment would further show that the trial Court

disbelieved the evidence of PWs 5 and 6 who also claim to be the eye

witnesses in view of Ex.D1 to D3 contradictions in their evidence. The

trial Court did not specifically mention about the veracity of the

evidence of PWs 7 and 8 who spoke about the animus of the accused

towards deceased and their hearing the proclamation of A4 and A5 to

kill deceased. May be it is because the trial Court was satisfied with the

veracity of the evidence of eye witnesses i.e., PWs 2 to 4.

(b) Then coming to the defence evidence, the trial Court while

disbelieving the evidence of DWs1 and 2 who deposed that except A1

and A2, other accused were not present at the scene of offence at the

time of incident, held that said evidence is inconsistent with the

credible evidence of eye witnesses of prosecution.

that the prosecution has established the guilt of A1 to A5 beyond all

reasonable doubt for the charge U/s 302 IPC and accordingly convicted

and sentenced them as stated supra.

Hence the criminal appeal.

10. Heard Sri P.S.P. Suresh Kumar, learned counsel for the

appellants and learned Public Prosecutor representing the State.

11. ARGUMENTS:

Severely fulminating the conviction and sentence recorded by the

trial Court against all the accused, learned counsel for appellants firstly

argued that it was the deceased who went to the house of A2 and

manhandled A1 and accidentally fell from the pial on which he sat and

struck to the stone and suffered head injury and died accidentally but

none of the accused attacked and beat him. In expatiation, learned

counsel argued that admittedly the deceased went to the house of A1

and A2 and picked up the quarrel but not the accused. It shows accused

have had no motive or intention to kill or at least cause injuries to the

deceased. Learned counsel would remind that the evidence of PWs 7

and 8 who spoke about the alleged motive was not accepted by the trial

Court. In that view, the prosecution utterly failed to establish the

motive of accused to kill the deceased. Intention is concerned, he

argued, the manner of occurrence of incident as projected by the

prosecution, per se, would show that the accused never went upon the

house of deceased to cause either injuries or death to him. However,

the trial Court totally went wrong in accepting the interested evidence

of PWs 1 to 4, particularly PWs 2 to 4 who are inimically disposed of

towards accused and held as if their evidence established the guilt of all

the accused. In fact, PW 2 to 4 were not eye witnesses to the incident

and they were implanted.

(a) Secondly, learned counsel argued that at the time of incident

only A1 and A2 were present at the house of A2 but A3 to A5 were not

there in their respective houses. This fact has been clearly deposed by

DWs 1 and 2. However, the trial Court without any plausible reason

disbelieved their evidence and held as if all the accused attacked the

deceased. Learned counsel vehemently argued that if really all the

accused attacked the deceased with sticks and beat him on his head as

deposed by PWs2 to 4, multiple injuries must have resulted on the head

of deceased. However, the evidence of PW12- the postmortem doctor

belies the claim of eye witnesses and confirms only one head injury.

Therefore, the presence and participation of A3 to A5 is an afterthought

to implicate them.

(b) Thirdly, learned counsel argued that according to eye

witnesses the accused picked up sticks to attack deceased from the heap

of centering material lying in front of the house of A3. However,

MO.1 (sticks) were not confronted to eye witnesses during trial.

Further, in Ex.P6-rought sketch of scene of offence, the presence of the

said heap of centering material is not mentioned, meaning thereby, the

presence of such heap of centering material and accused picking up

sticks therefrom and beating the deceased etc., facts are all false.

Learned counsel would thus strenuously argue that the law

presumes the innocence of the accused till their guilt is proved to hilt

and in the instant case, in spite of the above glaring infirmities in the

prosecution case cutting across its veracity, still the trial court recorded

conviction on mere surmises and presumptions on the strength of the

evidence of highly interested witnesses and hence, the conviction is

liable to be set aside. He placed reliance on Ashish Batham v. State

of M.P.1 and Suresh Thipmppa Shetty v. State of Maharashtra2

prosecution case is believed, there will be no room for charge U/s 302

IPC, inasmuch as, there was no intention on the part of accused to do

away with the deceased because the deceased and accused are

admittedly close relations and the dispute between them was a minor

family issue as A1 allegedly neglected to maintain his daughters.

Further, it was the deceased who went upon the house of accused and

raised the galata. In such circumstances, due to the provocation offered

by the deceased and his wife, if the accused caused injuries to the

deceased that must be without any intention to kill him. He further

argued that the accused has no knowledge about the alleged heart

surgery of the deceased and prosecution also did not place any material

to substantiate its plea. In those circumstances, the accused would be

(2002) 7 SCC 317

2023 SCC Online SC 1038

liable for the charge U/s 326 IPC or at the worst for the charge U/s 304

Part-II IPC but at any rate their acts would not constitute the offence of

murder punishable U/s 302 IPC.

12. Per contra, learned Public Prosecutor argued that all the accused

committed an act of first degree of culpable homicide i.e., murder by

ruthlessly beating the deceased with sticks on his head and by giving

fist blows on his chest knowing fully well that he was a heart patient

and underwent bypass surgery some time back. Their guilt was amply

established by the prosecution through the eye witnesses. He further

strenuously argued that PWs 1 to 4 are none other than the kith and kin

of all the accused and more specifically, PW3 and 4 are the own

daughters of A1, granddaughters of A2 and nieces of A3. In that view,

there was no need for them to speak falsehood against the accused to

implicate them in the offence. Learned Public Prosecutor further

argued that PWs 1 to 4 had no grudge against A1 except a legitimate

demand for maintenance and welfare of his forlorn daughters. If they

had such grudge, they would have implicated him in a false case long

back. The trial Court rightly believed the intrinsic evidence of PWs 1 to

4 and convicted the accused but not on the basis of any presumptions or

conjectures. He argued that merely by mistake, the heap of centering

materials was not shown by the I.O. in the rough sketch, such a minor

lapse in investigation cannot be magnified to discard the otherwise

cogent and believable evidence of eye witnesses who in one voice

stated that the deceased was attacked and hit with sticks by the accused.

He also argued that the defence evidence is an afterthought and

therefore, rightly rejected by the trial court. Finally, contradicting the

argument of appellants that the offence would not fall under Section

302 IPC but come under Section 304 IPC, learned Public Prosecutor

argued that the offence fall u/s 302 IPC as the accused have

intentionally killed the deceased. He placed reliance on the following

decisions, wherein the distinction is drawn between a murder and

culpable homicide not amounting to murder.

(a) Anbazhagan v. The State, rep. by the Inspector of Police3

(b) The State of Uttarakhand v. Sachendra Singh Rawat4

Criminal Appeal No.2043/2023 (arising out of SLP (Crl) No.9289/2019)

MANU/SC/0144/2022 = (2022) 4 SCC 227

13. The point for consideration is whether all the accused caused the

death of deceased? If so, whether their act fall within the ambit of

offence of murder U/s 302 IPC or any other offence?

14. ANALYSIS:

It should be noted, the accused have not denied the occurrence of

incident and death of deceased on the fateful night of 09.02.2014.

However, they mainly dispute the manner of occurrence of incident and

participation of all the accused and their overt acts as projected by the

prosecution. Precisely, the case of accused is that on the night of

incident, the deceased indeed went to the house of A1 and A2 and

raised a galata with regard to the maintenance of the unmarried

daughters of A1 and beat A1 with a chair and PW2 also beat A1 with a

chappal and seeing his fury, DW2 and others made him sit on a nearby

pial and again he rose and tried to proceed towards A1 and in that

anxiety, he fell and struck to a stone and suffered head injury and

became unconscious and later died. None of the accused, more

specifically A3 to A5, who were absent at the scene, beat him.

15. In the light of above contention, we have meticulously

scrutinized the facts, evidence on record and the judgment of the trial

court. PWs 2 to 6 are the main eye witnesses. Among them the trial

court rightly rejected PW5 and 6. PWs 5 and 6 are chance witnesses,

inasmuch as, they came to Brahmananda Reddy colony before incident

as PW5 wanted to see a site and purchase the same and while enquiring

the tenants of driver Babu and his wife, they heard the cries of deceased

and witnessed the galata. The trial Court, in our view, rightly rejected

their evidence as the same do not infuse confidence. The incident was

occurred in the night time between 07.30 PM and 8.00 PM. It is quite

unbelievable that in that night time, PWs 5 and 6 went to see a site with

an intention to purchase the same. Further, none of the other

prosecution witnesses PWs 1 to 4 spoke about the presence of PWs 5

and 6 at the time of incident. Above all, PW5 and PW6 are close

relations of deceased. PW6 is the brother-in-law of PW5 and the

deceased is the maternal uncle of PW5. Both the witnesses admitted

that they cannot speak about the individual overt acts of the accused.

All these would show that these two witnesses were planted to lend

support to the prosecution case.

16. Coming to PWs 2 to 4, they are the wife and granddaughters of

the deceased. Of them, PWs 3 and 4 are the own daughters of A1.

They deposed in one voice that on coming to know that A1 came from

Hyderabad and available at the house of his father i.e., A2, the

deceased and PWs 2 to 4 went there on the night of incident between

07.00 and 07.30 PM and demanded A1 to take the responsibility of his

daughters. He refused and picked up quarrel with them. At that time,

all the accused were present at the house of A2 and all of them beat the

deceased with sticks on his head and also fisted on his chest and caused

injuries. PW2 informed PW1 about the incident and he rushed there

and shifted the deceased to the hospital, where he was declared as

brought dead. They staunchly denied the defence suggestion that the

accused did not beat the deceased and he fell from the pial at the house

of Anjaneyulu and sustained injuries and died. This is the version of

eye witnesses regarding the manner of occurrence of incident. On a

careful scrutiny, we find the evidence of PWs 2 to 4 regarding the

occurrence of incident and the deceased receiving injuries in the hands

of accused as cogent, intrinsic and reliable. It must be noted that the

whole episode was occurred when the deceased went to the house of

A1 and A2 to question the attitude of A1 in neglecting his daughters.

In that backdrop, PWs 2 to 4 following the deceased to the house of

accused and witnessing the incident can be accepted as a natural

phenomenon. As stated supra, PWs 3 and 4 are none other than the

daughters of A1. Therefore, the presence of PWs 2 to 4 at the scene

cannot be doubted. No doubt, the appellants have argued that PWs 2 to

4 were not the eye witnesses and they were planted. However, this

argument has no teeth or venom for the reasons stated supra. Further,

in the cross-examination of PWs 2 to 4, no specific suggestion was

given to them that they were not eye witnesses to the incident.

(a) The presence of A1 to A5 is also believable because the

incident was occurred in front of their houses. The defence, of course,

admitted the presence of A1 and A2 though denied the presence and

participation of A3 to A5. However, such a plea cannot be accepted

because no specific suggestion regarding the absence of A3 to A5 was

given to PWs 2 to 4 in the cross-examination. On the other hand, the

eye witnesses have categorically deposed about the presence and

participation of all the accused in their evidence. As stated supra, the

eye witnesses have no specific animosity against any accused,

particularly, A3 to A5. The argument of the defense side that when all

the accused attacked and beat on the head of the deceased, it is quite

improbable that he would receive only one head injury and hence the

alleged participation of all the accused in the crime is false is

concerned, it has no much force. PW2 in her cross examination

specifically stated that all the accused beat her husband with sticks on

his head and all of them attacked her husband at once by surrounding

him within a radius of one feet. This narration would show that though

all the accused attacked on the head of the deceased, the possibility of

one stick hitting the head at first and other sticks hitting on that stick

and thereby resulting only one head injury cannot be ruled out. It

should not be forgotten, the eye witnesses who witnessed grave

incident cannot be expected to retain in their mind with photographic

memory and depose with mathematical precision in a court of law. As

stated supra, PWs 2 to 4 have clearly stated that all the accused picked

up quarrel with the deceased and beat him with sticks on head.

Therefore, the defence cannot take advantage from single head injury to

contend that participation of several accused is false. It is further

contended that the I.O. has not mentioned in Ex.P6 - rough sketch

about the presence of centering material near the scene of offence and

therefore, the story of prosecution that the accused picked up M.O.1

sticks from the heap of aforesaid centering material and attacked the

deceased is false. We are unable to accept the contention for the reason

that merely because the I.O. failed to mention about the presence of

centering material at the scene, such investigative lapse cannot be taken

as a ground to discard the otherwise truthful evidence of PWs 2 to 4.

Though in Ex.P6, the presence of centering material was not

mentioned, however, in Ex.P2 - scene of offence observation report,

the presence of MO.1 (3 sticks) and their seizure by the I.O. in the

presence of PW9 and LW11 etc. facts were mentioned. Though PW9

was intensely cross-examined, nothing useful could be elicited to

disbelieve the seizure of M.O.1 at the scene of offence. Above all, the

evidence of PW12 would show that he found fracture of fronto paretal

bone apart from contusion over the middle of forehead (5 x 3 cm) and

multiple contusions over the middle of the chest. PW12 stated that the

cause of death was due to the shock and hemorrhage due to head injury.

In the cross-examination, PW12 stated that if a person was beaten with

sticks like MO.1 (witness was confronted with the sticks) on the head,

there shall be swelling. He further stated that the weapons like sticks

and rods can produce injury No.2 i.e., multiple contusions. The

medical evidence thus lends support to the ocular evidence of PWs 2 to

4. It is true that during trial PWs 2 to 4 were not confronted with MO.1

sticks by the Public Prosecutor to elicit whether those sticks were used

by the accused to cause injuries to the deceased. However, since the

seizure of MO.1 at the scene of offence is believable, and in addition to

that, PW12 avouched that the injuries found on the dead body can be

caused with MO.1 sticks, non-confrontation of sticks to eye witnesses

cannot be regarded as a grave mistake to discredit the prosecution case.

(b) The defence in order to rebut the prosecution story examined

DWs 1 and 2. It must be noted that during the cross-examination of

PWs 1 to 4, it was not suggested to them about the presence of DWs 1

and 2 and their witnessing Santhamma, wife of A4, making the

deceased to sit on the pial. Therefore, it can be said that they were

planted as an afterthought to lend support to the defence version.

17. In this regard, the arguments raised by the appellants and

decisions cited by them do not impeach the credibility of prosecution

case. In Ashish Batham's case (1 supra), the Apex Court set aside the

conviction of the appellant for the offence u/s 302 IPC for murdering

two girls, on observation that the Courts below without any objective,

independent and impartial analysis of the materials recorded the

conviction and thereby grave miscarriage of justice was occasioned.

Similarly, in Suresh Thipmppa Shetty's case (2 supra), the facts are

that A1 and A7 are brothers and they had business rivalry with the

deceased and so they conspired with other accused and killed him. The

trial court and High Court convicted A2 and A4 while acquitting A1,

A5, A6 and A7. In that backdrop, Hon'ble Apex Court having

examined the facts and law, has observed that the main accused A1 and

A7 were acquitted and the conspiracy angle dehors the said main

conspirators who were the masterminds as per the prosecution, cannot

be said to be proved beyond reasonable doubt and allowed the appeals

of other accused. Needless to emphasize both these decisions are

factual oriented and hence, of no avail to appellants.

Thus, the prosecution by cogent evidence established that all the

accused attacked the deceased with sticks and caused his death.

18. Now, the alternative argument of learned counsel for appellants

Sri P.S.P. Suresh Kumar has to be considered.

Over the years, much ink has been flown by the Apex Court and

several High Courts to draw the subtle distinction between the phrases

"murder" and "culpable homicide not amounting to murder" so as to

impose punishment proportionate to the extent and gravity of the

offence.

(a) In State of A.P. v. Rayavarapu Punnaya5, the facts were

that there were political differences between accused and deceased and

in that context, on 23.07.1968, when the deceased and A1 to A5 got

(1976) 4 SCC 382 = MANU/SC/0180/1976

down the bus at Nekarikal cross roads at about 07:30 A.M. and when

deceased and PW1 were proceeding towards a choultry, the accused

picked up heavy sticks and went after the deceased into the choultry

and despite the entreaties of the deceased who was an old man of 55

years, A1 and A2 indiscriminately pounded the legs and arms of the

deceased. While undergoing treatment in Guntur hospital, the deceased

succumbed to injuries on 24.07.1968. The trial Judge convicted A1

and A2 U/s 302 r/w 34 and sentenced them to imprisonment for life.

The High Court on appeal altered the punishment U/s 304 Part II IPC

and reduced the sentence to five years R.I. each. The principal question

that fell for consideration in the appeal before the Apex Court was

whether the offence committed by the accused was murder or culpable

homicide not amounting to murder. The Apex Court observed

"12. In the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice-versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder', is 'culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first

is, what may be called, 'culpable homicide of the first degree'. This is the greatest form of culpable homicide which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section

304. Then, there is 'culpable homicide of the third degree.' This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304."

Referring to different decisions, the Apex Court ultimately held

thus:

"21. From the above conspectus, it emerges that:

whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder,' on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300, Penal Code is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of

any of the four Clauses of the definition of murder' contained in Section 300. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of Section 304, depending, respectively, on. whether the second or the third Clause of Section 299 is applicable. If this question is found in the positive, but the case comes, within any of the Exceptions enumerated in Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the First Part of Section 304, Penal Code."

(b) In Anbazhagan's case (3 supra) which is the latest decision,

the Apex Court made a survey of several decisions including

Rayavarapu Punnayya and drew some important principles of law:

60. (1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. To illustrate: 'A' is bound hands and foot. 'B' comes and placing his revolver against the head of 'A', shoots 'A' in his head killing him instantaneously. Here, there will be no difficulty in holding that the intention of 'B' in shooting 'A' was to kill him, though only single injury was caused.

The case would, therefore, be of murder falling within Clause (1) of

Section 300 of the IPC. Taking another instance, 'B' sneaks into the bed room of his enemy 'A' while the latter is asleep on his bed. Taking aim at the left chest of 'A', 'B' forcibly plunges a sword in the left chest of 'A' and runs away. 'A' dies shortly thereafter. The injury to 'A' was found to be sufficient in ordinary course of nature to cause death. There may be no difficulty in holding that 'B' intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of 'B' within Clause (3) of Section 300 of the IPC and render him guilty of the offence of murder although only single injury was caused.

(3) To put it in other words, if the act of an accused person falls within the first two clauses of case of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is 'guilty intention,' whereas the second part would apply when there is no such intention, but there is 'guilty knowledge'.

(4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder.

(5) Section 304 of the IPC will apply to the following classes of cases: (i) when the case falls under one or the other of the clauses

of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression 'sufficient in the ordinary course of nature to cause death' but is of a lower degree of likelihood which is generally spoken of as an injury 'likely to cause death' and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death.

To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC.

19. When the case on hand is tested on the anvil of the above

principles explicated by Hon'ble Apex Court, in the instant case, the

following striking features would project:

(i) the accused and deceased were close relations and though there were previous disputes on the allegation that A1 left

his daughters to the mercy of deceased and his wife, the said dispute never went to the extent of one party causing injuries to other party except verbal altercation and panchayat before elders;

(ii) though prosecution made a feeble attempt through PWs 7 and 8 to show that accused proclaimed their intention to kill the deceased, however, the trial Court, in the judgment, rightly did not give any weight and place implicit reliance on the said evidence. If really PWs 7 and 8 heard A4 and A5 proclaiming that it would be better to kill the deceased or PW1 to get rid of the issue, nothing prevented them from alerting the deceased. Therefore, no reliance can be placed on their evidence to conclude that the accused nurtured a strong desire to kill the deceased or PW1. Therefore, the prosecution failed to prove the intention or motive for the accused to kill the deceased.

(iii) In addition, though five accused attacked the deceased, only one injury was inflicted on the vital part of the deceased i.e., on his head. It is true that infliction of one injury alone may not be a determinative factor to conclude lack of intention of the accused to kill the deceased. However, the other circumstances such as previously there were no incidents of attacking one party on other and causing injuries; on the date of incident also the accused

did not go to the house of deceased to attack, but the deceased and PWs 2 to 4 went to the house of accused and raised galata and in that course, the accused took the sticks lying there and attacked and caused only one injury on the vital part and fist blows on the chest etc. would cumulatively indicate the lack of intention on the part of the accused to kill the deceased. However, in view of one injury being caused on the vital part, the accused can be attributed with the knowledge that the said injury would likely to cause his death.

(iv) Regarding the alleged heart surgery of the deceased and knowledge of the accused of this fact is concerned, no material is placed before the trial court and hence, it is not desirable to attribute knowledge to the accused of his heart surgery and their further knowledge that the injuries caused by them would likely to cause his death.

20. From the above, we hold that the act of accused do not constitute

an offence of murder U/s 302 IPC, for, there is no intention to kill the

deceased but only there was knowledge that the injury inflicted by them

on the head would likely to cause his death. Therefore, their act comes

U/s 304 Part II IPC. Accordingly, the conviction recorded by the trial

court against appellants / A1 to A5 U/s 302 IPC is altered to one U/s

304 Part II IPC and for the said altered conviction the appellants /

accused 1 to 5 are sentenced to undergo rigorous imprisonment for a

period of six years and to a fine of Rs.2,000/- each and in default to

pay fine, they shall suffer S.I. for one month.

This Criminal Appeal is allowed to the extent mentioned above.

As a sequel, interlocutory applications pending, if any, shall stand closed.