Beragedhar Laxmana Rao vs State Of A.P.
2022 Latest Caselaw 4128 Tel

               HON'BLE SRI JUSTICE K.SURENDER

               CRIMINAL APPEAL No.901 OF 2009
JUDGMENT:

1. The appellant is convicted for the offence under Section 304-II

IPC and sentenced to undergo rigorous imprisonment for a period of

three years and also to pay fine of Rs.10,000/-vide judgment in

S.C.No.552 of 2008 dated 14.07.2009 passed by the Principal

Sessions Judge, Khammam. Aggrieved by the same, present appeal

is filed.

2. The case of the prosecution is that the appellant and the

deceased are friends. P.W.1 is the father and P.W.2 is the wife of

the deceased. According to P.Ws.1 and 2, the deceased was

murdered for the reason of the deceased borrowing the amount of

Rs.10,000/- from the mother-in-law of the appellant and the same

was not repaid by the deceased. Few days prior to the incident, the

appellant went to the house of P.W.1 and questioned the deceased

regarding the outstanding amount. The deceased promised to repay

but never paid the amount. The appellant had, in fact, gone to the

house three or four times and also quarreled with the deceased for

repayment of the amount.

3. On 17.12.2007, when P.W.3 and the deceased were at

Jagadamba Centre, the appellant contacted the deceased on phone

and the deceased refused to answer the call. Then the appellant

contacted P.W.3 on phone and asked P.W.3 to handover the phone

to the deceased. The deceased disconnected the phone, for which

reason, the appellant came to the place where P.W.3 and the

deceased were standing and questioned as to why the deceased was

not responding to the telephone calls. Then, an altercation took

place for which reason, the deceased slapped the appellant and

then the appellant and the deceased scuffled with each other and

when the deceased fell on the road, the appellant kicked the

deceased on his testicles with his knees and also hit the deceased

with a stone. The deceased vomited and meanwhile, the appellant

fled. When deceased was taken to the hospital, the Doctor declared

him as brought dead.

4. Learned counsel for the appellant submits that finding of the

learned Sessions Judge is erroneous for the reason of there being

several discrepancies in the case of prosecution. P.Ws.1 and 2 are

not eye witnesses to the incident and further, the motive of the

murder regarding the loan amount being taken was not proved by

the prosecution. Further, according to P.W.3, there was one person

by name Srinu, who was at the scene and said Srinu was not

examined during investigation. In the said circumstances, the

prosecution has failed to prove that it was the appellant who had

attacked the deceased.

5. On the other hand, the learned Public Prosecutor submits that

P.W.4 who is an eye witness and sweet shop owner before which the

incident took place, P.W.5 who was present at the centre, P.W.6

who is another independent witness have stated regarding the

altercation in between the appellant and the deceased, for which

reason, the conviction cannot be interfered with.

6. The incident took place on the road. Even according to the

prosecution, there were disputes between the deceased and the

appellant. As argued by the learned counsel for the appellant that

the motive aspect was not proved cannot be made a ground to set

aside the conviction for the reason of there being eye witness

account. When there is an eye witness count, the motive part,

though projected by the prosecution is of no consequence.

7. P.Ws.3 to 6 have stated that there was an altercation in

between the appellant and the deceased. P.W.3 specifically stated

that when the appellant arrived at the centre, there was heated

exchange of words between the deceased and the appellant and it

was the deceased who first slapped the appellant and thereafter,

both entered into the scuffle. In the said fight, the deceased had

fallen down and the appellant kicked the deceased on his testicles.

Thereafter, he hit the deceased with a stone.

8. The evidence of P.W.10, autopsy Doctor is that two fractures

on the left temporal and fracture of left parietal bone extended up

to the above the left ear were found and the cause of death was on

account of fractures on the left temporal bone. No injury external or

internal were found on the testicles. The Doctor further deposed

that the injuries are possible if a person falls on a hard surface.

P.Ws.4 to 6, who are the independent witnesses to the altercation in

between the deceased and the appellant did not state anything

about the appellant hitting the deceased with a stone after he fell

down. In the said circumstances, it cannot be conclusively said

that the appellant had inflicted injuries on the head of the deceased

with a stone. The witnesses P.Ws.4 to 6 were not declared as hostile

to the prosecution case and the prosecution has not taken any

steps to cross-examine the witnesses to speak about the alleged act

of the appellant in hitting the deceased with a stone.

9. In the said circumstances, when the prosecution has failed to

prove that the injuries received on the head of the deceased was on

account of the appellant hitting with the stone and the possibility of

the deceased receiving the said injuries on account of fall on the

road cannot be ruled out, benefit of doubt has to be extended to the

appellant. Therefore, the conviction under Section 304-II of IPC is

set aside. However, the evidence of P.Ws.3 to 6 is consistent

regarding the altercation in between the appellant and the

deceased, for the said reason, the appellant is liable to be convicted

under Section 324 of IPC.

10. The incident is of the year 2007 and according to P.W.3, an

altercation started after heated argument in between the deceased

and the appellant and it was the deceased who first slapped the

appellant leading to an altercation and subsequently, the deceased

falling on the road. In the said circumstances, the sentence of

imprisonment under Section 324 of IPC is reduced to the period

already undergone.

11. In the result, the conviction recorded by the trial Court under

Section 304-II of IPC is modified to the extent indicated above.

12. Accordingly, the Criminal Appeal is partly allowed. As a

sequel thereto, miscellaneous applications, if any, shall stand

closed.

_________________ K.SURENDER, J Date:11.08.2022 kvs

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL No.901 OF 2009

Dated: 11.08.2022

kvs