Marampalli Narasaiah And 4 Others vs The State Of Ap., Through Sho., ...
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 THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY
                                  AND
 THE HON'BLE SMT. JUSTICE ANUPAMA CHAKRAVARTHY

             CRIMINAL APPEAL No.538 OF 2014

JUDGMENT:     (Per Hon'ble Sri Justice A. Venkateshwara Reddy)


      This Criminal Appeal is directed against the judgment

dated 17.04.2014 in Sessions Case No.121 of 2013 on the file

of learned II Additional Sessions Judge, Karimnagar at

Jagitial wherein the accused Nos.1 to 5 were found not guilty

for the offences punishable under Sections 447 and 323 of

Indian Penal Code (for short 'IPC') and were acquitted for the

same under Section 235(1) of Criminal Procedure Code (for

short 'Cr.P.C.').   Further, accused Nos.1 to 5 were found

guilty for the offences punishable under Sections 148, 302

read with Section 149 of IPC and convicted under Section

235(2) of Cr.P.C. and were sentenced to undergo simple

imprisonment for a period of one year for the offence

punishable under Section 148 of IPC and also sentenced to

undergo life imprisonment and to pay a fine of Rs.1,000/-

each for the offences punishable under Sections 302 read
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                                                  Crl.A_538_2014
                           Page 2 of 29


with 149 of IPC and in default of payment of fine, to suffer

simple imprisonment for a period of one month.


2.   In brief the prosecution case is that during the

interregnum night of 31.12.2011 and 01.01.2012 at about

11.30 P.M. the deceased Naluvala Narsaiah along with

Naluvala Kistaiah (PW8) and Ashaiah (LW10) was found

sitting before the fire to beat the winter cold on the road near

his house. At that time the Accused Nos.1 and 2 brought

their friend E.Thirupathi on their motor cycles for dropping

him at his house and drove the motor cycle at high speed and

on seeing it, the deceased Naluvala Narsaiah asked them to

drive slowly to avoid accident, since children were wandering

on the street celebrating new year, then accused Nos.1 and 2

picked-up quarrel with him, abused him and left that place.

Again after some time, accused Nos.3 and 4 brought their

friend Chiranjeevi on their motor cycle for dropping him at his

house and after dropping Chiranjeevi, they drove the motor

cycle at high speed, again the deceased questioned them,

then they have quarrelled with the deceased but the quarrel

was subsided due to intervention of Naluvala Ashaiah (LW10)
                                                    AVR,J & GAC,J
                                                   Crl.A_538_2014
                          Page 3 of 29


and Naluvala Kistaiah (PW8). Thereafter, accused Nos.1 to 5

gathered at the house of accused No.3, consumed some more

liquor, had discussion about the incident and decided to do

away with the lives of de-facto complainant and his father i.e.

the deceased. In furtherance of their plan, accused Nos.1 to 5

formed into unlawful assembly, reached the locality of

deceased, accused No.1 picked up cart peg from a bullock

cart parked near the house of de-facto complainant and on

reaching the house of de-facto complainant, they found the

deceased laying on the cot and they insisted him to call his

son (PW.1) and picked up quarrel with him, started beating

him and upon hearing shouts of his father, PW.1 as well as

other people of the locality came out of their houses, accused

No.1 beat the deceased with cart peg and accused No.2 beat

him with pestle (Rokalibanda). The deceased received injuries

on his head, face and fell down. While the fight was going on

Naluvala   Dharmapuri,    Naluvala       Mahesh   and   Naluvala

Srinivas (PWs.5, 6 and 7 respectively) arrived there, picked up

quarrel with the accused and there was a free fight between

the accused on one side and PW.1 and PWs.5 to 7 on other

side. In that fight, accused Nos.1 and 2 also sustained
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                                                   Crl.A_538_2014
                           Page 4 of 29


injuries on their heads. Thereafter, accused Nos.1 to 5 fled

away on their motor cycles. De-facto complainant (PW1)

shifted his injured father (deceased) to Area Hospital, Jagitial

for treatment. But due to his serious condition, as per

medical   advice,   he   was    shifted   to   Spring   Hospital,

Karimnagar, he was treated in that hospital till 09.01.2012

and thereafter he was again brought and admitted in the

Government Area Hospital, Jagitial and while undergoing

treatment, succumbed to the injuries at 04.40 P.M. on

09.01.2012

. The police initially registered a case for the

offence under Sections 148 and 324 read with Section 149 of

IPC and after receipt of death intimation, Section 302 of IPC

was added.

3. Investigation discloses that the accused Nos.1 to 5

committed the offences punishable under Sections 148, 302

read with 149 of IPC.

4. From the material available on record, it appears that,

after furnishing necessary copies to the accused, as required

under Section 207 of Cr.P.C., the case was committed by the

learned Magistrate to the Court of Sessions. Learned Sessions AVR,J & GAC,J Crl.A_538_2014

Judge, after registering the case vide SC No.121 of 2013,

made over the same to the learned II Additional District and

Sessions Judge, Karimnagar at Jagitial. The learned II

Additional District and Sessions Judge at Jagitial has framed

charges against the accused for the offences punishable

under Sections 148, 447, 323, 302 read with 149 of IPC for

which all the accused pleaded not guilty and claimed to be

tried.

5. During trial, to unfold their case on behalf of

prosecution, PWs.1 to 18 were examined, Exs.P1 to P24 and

Mos.1 to 4 were marked. After closure of prosecution

evidence, accused were examined under Section 313 Cr.P.C

with reference to the incriminating oral and documentary

evidence, they denied the said evidence in toto stating that a

false case is foisted against them. No defence evidence is

adduced.

6. The trial Court after hearing both the parties, found

accused Nos.1 to 5 guilty for the offences punishable under

Sections 148, 302 read with Section 149 of IPC and they were

convicted under Section 235(2) of Cr.P.C., sentenced to AVR,J & GAC,J Crl.A_538_2014

undergo simple imprisonment for a period of one year for the

offence punishable under Section 148 of IPC, also sentenced

to undergo life imprisonment and to pay a fine of Rs.1,000/-

each for the offences punishable under Sections 302 read

with 149 of IPC and in default of payment of fine, to suffer

simple imprisonment for a period of one month. Assailing the

same, the appellants/accused Nos.1 to 5 have preferred this

appeal.

7. Heard learned counsel for the appellants / accused

Nos.1 to 5 and learned Special Public Prosecutor on behalf of

learned Public Prosecutor for the State. Perused the material

available on record. The detailed submissions made on either

side have received due consideration of this Court.

8. The prosecution has in all examined 18 witnesses in

support of their case. Among them PW1 is the de-facto

complainant and eye witness to the incident, he is son of the

deceased. He gave first information report as in Ex.P1 to the

police. PW2 is wife of PW1, she did not witness actual

occurrence of incident but rushed to the spot immediately

after PW1. PW3 is neighbour of PWs.1 and 2 and she is AVR,J & GAC,J Crl.A_538_2014

daughter-in-law of brother of deceased, she is an eye witness

to the incident. PW4 is daughter of brother of deceased, she

is also an eye witness to the occurrence of incident and she

was in the house of PW3 at the time of incident. PW5 is the

4th brother of the deceased and father of PW4, residing in the

house opposite to the house of deceased, he is also not an eye

witness to the occurrence of incident. PW6 is a circumstantial

witness but this witness has spoken through as if he is an eye

witness to the occurrence of incident. PW7 is neighbour and

circumstantial witness, turned hostile and did not support

the prosecution case. PW8 is 3rd brother of the deceased, he

has spoken through about the occurrence of the incident, he

is an eye witness to the incident. PW9 is the photographer,

who obtained photographs of scene of offence as per the

instructions of Investigating Officer. PW10 is the doctor, who

gave initial treatment to the deceased at Area Hospital,

Jagitial and stated that the deceased was brought to the

hospital with head injuries and fracture to the scull bone was

suspected and he was in unconscious state and advised for

shifting to MGM Hospital, Warangal. PWs.11 and 12 are the

punch witnesses for observation of scene of offence. PW12 AVR,J & GAC,J Crl.A_538_2014

turned hostile did not support the prosecution case, whereas

PW11 has simply stated that he is not aware of the alleged

galata, but he has signed on Exs.P10 and P11 at the instance

of the police. PW13 is a punch witness for inquest

panchanama held over the body of the deceased as in Ex.P13.

PW14 is a punch witness for confession of accused and

seizure of two motor cycles, cart peg and pestle (Rokalibanda).

PW15 is the doctor, who again admitted the deceased in the

Area Hospital at Jagitial on 09.01.2012 at 03.35 P.M. when

he was brought after treatment in a private hospital at

Karimnagar and at that time, the deceased was grasping and

completely sick and within one hour after admission, he died

on that it was informed to the police. PW16 is the doctor,

who conducted autopsy over dead body of deceased. PWs.17

and 18 are the Investigating officers.

9. PW1 stated that on 31.12.2011 accused Nos.1 and 2

came on motor cycle to drop one Thirupathi and at that time

his father (deceased) asked them to go slowly on their motor

cycle and not to drive at high speed since children were

playing in the street on the occasion of new year, on that both AVR,J & GAC,J Crl.A_538_2014

accused Nos.1 and 2 abused the deceased. Again after fifteen

minutes accused Nos.3 and 5 came on motor cycle at high

speed to drop one Chiranjeevi then also the deceased asked

them not to drive the motor cycle at high speed since children

were playing. Accordingly, a small quarrel took place, accused

Nos.3 and 5 abused the deceased and left that place. Further

stated that again at about 01.15 A.M. during the intervening

night of 01.01.2012 accused Nos.1 to 5 came to their house

and started beating the deceased, they beat him with

'rokalibanda' (pestle) and 'bandi goyyas' (cart pegs) on that he

along with PWs.2 to 6 and 8 rescued the deceased and on

seeing them the accused ran away. PW1 deposed about

individual overt acts of each of the accused stating that

accused No.1 beat the deceased on his head, accused No.2

beat on nose and on left side chest of deceased, accused

Nos.3 to 5 beat him with cart pegs on the backside and other

places on the body. PW1 also stated that immediately he

shifted his father to Area Hospital, Jagitial and as per medical

advice, in view of serious condition, he was taken to Spring

Hospital, Karimnagar and thereafter, he gave report to the

police as in Ex.P1. PW1 was examined by police. PW1 stated AVR,J & GAC,J Crl.A_538_2014

that after nine days to his admission at Spring Hospital,

Karimnagar, due to serious health conditions, his father was

again brought down to Area Hospital at Jagitial and

immediately after admission at about 4.00 P.M. or 4.30 P.M.

he died.

10. PW1 is subjected to lengthy cross-examination.

Throughout the cross-examination, his evidence remained

consistent, nothing worth mentioning is elicited in support of

defence. He stated that his father may be aged around 50

years at the time of death and he was not suffering with any

ailment but has undergone appendicitis operation. He

admitted the relationship with PW3, PW4, PWs.6 to 8, LW5

(Naluvala Gangu), LW6 (Naluvala Lachaiah) and LW10

(Naluvala Ashaiah). He stated that he saw the accused

beating his father and then he separated the accused from

his father and rescued him. He denied the suggestion that

accused Nos.3 to 5 were not in the village at the time of

incident and due to previous enmity they are falsely

implicated. He further denied that his father died due to his

ill-ness and taking advantage of his death, a false case is AVR,J & GAC,J Crl.A_538_2014

foisted against the accused. He has also denied the

suggestion that accused Nos.1 and 2 also sustained injuries

and that they have filed a criminal case against him.

11. PW2 is the wife of PW1, she has supported the entire

evidence of PW1 on all material particulars. She noticed

accused Nos.1 to 5 beating the deceased with sticks on his

face, head and chest and that on seeing them, the accused

fled away. She has stated that she was examined by police

and her statement under Section 164 of Cr.P.C. was also

recorded by the Magistrate. In the cross-examination PW2

stated that she was told that deceased alone was sitting in

front of fire on that night, she along with PW1 and others

were inside the house during that night and small children

were wandering in the street since it was 31st December. She

admitted that against PWs.1, 5 and 6 a criminal case was

booked and stated that may be the deceased might have

beaten the accused Nos.1 and 2 in that night.

12. PW3 supported the entire oral evidence of PWs.1 and 2

and stated that during that night when she was sleeping, she

received a phone call from her husband Gangarajam, who AVR,J & GAC,J Crl.A_538_2014

was residing at 'Muskat' while she was talking to him over

phone she heard shouts and came out of her house and

found the accused beating the deceased and left the scene of

offence. Her statement under Section 164 of Cr.P.C. was

recorded by the Magistrate and this witness was declared as

hostile to the limited extent and she denied the suggestion

that she witnessed the actual occurrence of incident and

deposing false.

13. PW4 is the daughter of PW.5, at the time of incident she

was in the house of PW3, watching television. She supported

the evidence of PWs.1 and 2 on all material particulars and

stated that on hearing shouts in front of their house she came

out, found the accused beating deceased with cart pegs and

pestle. The witness also mentioned about the individual overt

acts of accused stating that accused No.2 beat on the face of

deceased, accused No.1 beat on his head and remaining

accused beat on the hands. She clearly stated that she along

with PWs.1, 2, 3 and 7 witnessed this incident. As far as

motive part is concerned, she explained that since the

deceased scolded the accused asking not to drive motor cycle AVR,J & GAC,J Crl.A_538_2014

at high speed they bore grudge against him. Her statement

under Section 164 of Cr.P.C. was also recorded by the

Magistrate. In the cross-examination she has stated that

there were disputes between the accused and deceased and

PW1 and there is graveyard litigation among them in the

village. She stated that she did not notice accused Nos.1 and

2 sustaining any injuries in the incident, but the police

registered a case against PWs.6 and 8. She has clearly stated

that blood was oozing out of body of injured, who was in

speechless status. She denied the suggestion that her father

/ PW5 beat the accused Nos.1 and 2 and that a criminal case

was also registered against her father and at the instance of

her father she is deposing false.

14. PW5 is father of PW4 and that he is the 4th brother of

deceased and residing in the house opposite to the house of

the deceased. This witness has supported the evidence of

PWs.1 to 4 in all material particulars. In the cross-

examination this witness stated that other than the relatives

of deceased no other people gathered while the accused

beating the deceased and for about 15 minutes the accused AVR,J & GAC,J Crl.A_538_2014

beat the deceased. He stated that on receiving a phone call of

PW4 he woke up and saw the accused fleeing away from the

scene of offence.

15. PW6 is a neighbour of the deceased, though he is cited

as circumstantial witness he has spoken through as an eye

witness to the incident. He has stated that the accused came

and beat his senior paternal uncle (deceased Narsaiah) the

accused were holding rokali banda (pestle) and bandigoyyas

(cart pegs) and that accused Nos.1 and 2 beat on the face of

the deceased and when he fell down, the accused beat him on

his chest. PW6 stated that along with PWs.1 to 5 he

witnessed the incident. In cross-examination, his entire

evidence remained consistent. However, it is submitted by

him that a criminal case is registered and pending against

him and the deceased also beat accused No.1 and that both

accused Nos.1 and 2 were referred to hospital by the police

for the injuries sustained by them.

16. PW7 is a neighbour of the deceased and circumstantial

witness, this witness turned hostile and did not support the

case of prosecution. He stated that PW1 questioned the AVR,J & GAC,J Crl.A_538_2014

accused as to why they are showing their 'rubabu' and

thereafter, he was informed that the accused consumed liquor

and beat the deceased, who was shifted to hospital. Though

he was cross-examined by learned Public Prosecutor, nothing

is elicited to disbelieve his evidence.

17. PW8 is third brother of deceased. He also witnessed the

incident. He supported the evidence of PWs.1 to 6 on all

material particulars. However, in the cross-examination he

has stated that he was inside the house and after midnight he

came out of the house.

18. PW9 is the photographer, he obtained photographs

Exs.P5 to P8 and gave them to the police.

19. PW10 is the doctor deposed that on 01.01.2012 the

deceased was brought to the hospital with injuries on his

head, fracture to skull bone was suspected, he was in

unconscious state and was advised to shift to MGM Hospital,

Warangal. Ex.P9 is O.P.Ticket. In the cross-examination he

has stated that the deceased was not admitted as in-patient,

but he was referred to MGM Hospital, Warangal for better AVR,J & GAC,J Crl.A_538_2014

treatment. He has also stated that in the same night accused

Nos.1 and 2 also came to the hospital with injuries for

treatment, they were admitted in the hospital.

20. PWs.11 and 12 are the witnesses for observation of

scene of offence panchanama. PW12 turned hostile, did not

support the case of prosecution and whereas, PW11 has

stated that at the instance of the police, he signed on Exs.P10

and P11 along with PW.12.

21. PW13 is a witness for Ex.P.13 inquest panchanama

conducted over the dead body of deceased. This witness is

not at all cross-examined by the learned defence counsel.

Thus, the oral evidence of PW13 and contents of Ex.P13

remained uncontroverted and this witness has clearly stated

that he noticed injuries over the head and chest of the

deceased and that contents of Ex.P13 were read over

explained to him.

22. PW14 is a witness for confession of accused and seizure

of MOs.1 to 4. This witness stated that at the instance of the

police he enquired accused Nos.1 and 2 and that they AVR,J & GAC,J Crl.A_538_2014

confessed about concealment of stick and pestle on the

backside of house of Ramesh stating that it was used for

committing the offence. Accordingly, the stick and pestle

were seized, they are Mos.1 and 2 respectively. PW14 further

stated that pursuant to the confession of the accused MOs.3

and 4 motor cycles were also seized. Though this witness was

cross-examined at length on behalf of accused, nothing is

elicited to disbelieve his evidence.

23. PW15 is the doctor, who admitted the deceased again in

the Area Hospital at Jagitial on 09.01.2012 and stated that by

05.00 P.M. the deceased died and it was informed to the

police under Ex.P17. In the cross-examination he has stated

that he did not notice any external injuries on the body of the

deceased as there was no time to observe the same.

24. PW16 is the doctor, who conducted autopsy over the

dead body of the deceased. She has stated that there were

multiple small abrasions over both feet, over left wrist, over

left side of the chest, over nose and there were sutured

wounds on the right upper eye lid, over the forehead and

there was a fracture on the frontal bone and the cause of AVR,J & GAC,J Crl.A_538_2014

death is head injury and shock due to haemorrhage.

However, the doctor has admitted that death of a person is

possible with the injuries noted in Ex.P18 if such a person

falls on a blunt object or on hard surface in intoxicated

condition.

25. PWs.17 and 18 are the Investigating Officers. PW17 has

registered the case on receipt of Ex.P1 from PW1 in crime

No.1 of 2012, issued FIR under Ex.P20, recorded the

statement of PW1, visited the scene of offence, prepared crime

details as in Ex.P11 and rough sketch as in Ex.P21, secured

the presence of witnesses, recorded the statements while the

investigation was in progress on 09.01.2012, received

intimation under Ex.P17 about death of deceased, altered the

Section of law by adding Section 302 of IPC. In the cross-

examination the witness admitted that accused Nos.1 and 2

also gave a report on 01.01.2012 and a case was registered at

05.30 P.M. on that day, and explained that one Head

Constable issued FIR and major part of the investigation in

that crime was conducted by the said Head Constable only.

He further stated that he is unable to recollect about staging AVR,J & GAC,J Crl.A_538_2014

of dharna in front of Police Station, Jagitial Rural by the

people of Tippannapet in relation to the dispute of burial

ground. He also admitted that in the counter case, he has

filed charge-sheet mentioning the reason as due to land

dispute and also stated that PWs.1, 5, 6 and 7 were charge-

sheeted in the counter case and the deceased could not be

charge-sheeted in view of his death.

26. PW18 is Investigating Officer, who received investigation

from PW17, recorded the statements of other witnesses, gave

requisition for conducting post-mortem examination, effected

the arrest of the accused on 16.01.2011, secured the

presence of punch witnesses, recorded the confession of the

accused leading to recovery and accordingly, MOs.1 to 4 were

seized at the instance of the accused. Mos.1 and 2 were sent

to FSL for examination. He also gave requisition to the

learned Magistrate at Metpalli for recording statements of

PWs.2 to 5 under Section 164 of Cr.P.C. and after completion

of investigation, he laid charge-sheet. In the cross-

examination the witness stated that as per his investigation,

the reason for the incident is that the deceased questioned AVR,J & GAC,J Crl.A_538_2014

the accused why they were riding motor cycles at high speed

during night hours of 31.12.2011. He was cross-examined

with reference to scene of offence, confession panchanama of

accused leading to recovery of MOs.1 and 2 and two motor

cycles as in MOs.3 and 4 and his entire evidence withstood

the cross-examination, nothing is elicited to discredit this

witness.

27. On a careful appreciation of entire evidence, as

discussed above, it is crystal clear that the accused have not

disputed much over the homicidal death of the deceased and

in-fact it could be inferred from the suggestions given by

learned defence counsel to the doctor that such death was on

account of sustaining injuries when the deceased fell down in

intoxicated condition due to old age and also due to ill-health

but there is no record to show that either the deceased was

suffering with any of the old age ailments or that he was

under intoxicated condition at the time of incident. On the

other hand, there is ample evidence on record to show that

when the accused were driving motor cycle at high speed

during the intervening night of 31.12.2011 and 01.01.2012 AVR,J & GAC,J Crl.A_538_2014

the deceased advised them not to drive the vehicle at high

speed since children were wandering on the road/street, later

all the accused gathered at the house of accused No.3,

consumed some more liquor, came to the house of deceased,

questioned him and also asked him about PW1 and beat the

deceased with cart pegs and pestle. Though the doctor

(PW16) has answered positively stating that it is possible to

receive such ante-mortem injuries, as mentioned in Ex.P18, if

a person falls on hard surface in intoxicated condition, there

is no evidence to that effect either elicited in the cross-

examination of prosecution witnesses or by examining any

defence witnesses. Be it stated that even while answering the

questions relating to incriminating evidence found against

them under Section 313 Cr.P.C., the accused have totally

denied and did not offer any explanation nor explained the

occurrence of the incident in tune with the suggestions given

to PW16. Thus, a feeble and unsuccessful attempt was made

by the defence to show that the deceased sustained injuries

by a fall on hard surface in intoxicated condition and that

such injuries were not inflected by any of the accused. In

view of consistent oral evidence of eyewitnesses as to the AVR,J & GAC,J Crl.A_538_2014

manner of occurrence of the incident, I do not find any weight

or merit in the suggestion given to PW16 and her answering

in positive. Therefore, without any second thought it can be

said that the defence of the accused is nothing but a make

believe defence without any factual basis.

28. Doctor PW16 who conducted autopsy over the dead

body has opined that the death is on account of head injury

and shock due to haemorrhage. The deceased was admitted

in hospital initially on 01.01.2012 and as per the medical

advice for better treatment he was shifted to Spring Hospital,

Karimnagar, treated in that hospital till 09.01.2012, finally,

he was again shifted to Area Hospital, Karimnagar and

immediately after shifting by 05.00 P.M. he died. Thus, the

homicidal death of the deceased, cause of death and nature of

injuries sustained is established by the prosecution with

cogent and consistent oral and medical evidence and it is not

seriously disputed by the accused.

29. The narration of eye witnesses i.e. PWs.1 to 6 and 8 as

to the manner of occurrence of the incident, individual overt

acts of the accused, remained consistent throughout their AVR,J & GAC,J Crl.A_538_2014

cross-examination. However, some of the witnesses have

categorically admitted that a counter case is also registered,

accused Nos.1 and 2 were also referred to the hospital during

that night. PW10/doctor has categorically stated that accused

Nos.1 and 2 were admitted in the hospital and they were

given treatment. Similarly, first Investigating Officer / PW17

has stated that Head Constable has conducted major portion

of the investigation in the counter case but he has filed the

charge-sheet mentioning that the incident occurred due to

land dispute. PW17 categorically stated that in the counter

case, he has charge-sheeted against PWs.1, 5, 6 and 7 and he

could not charge-sheet the deceased as he expired. This

evidence of PW10 and 17 coupled with admissions of eye

witnesses as discussed above would establish that during the

intervening night of 31.12.2011 and 01.01.2012 almost there

was a free fight between the accused on one side and PWs.1,

5, 6, 7 and the deceased on the other side and in that

incident, the accused Nos.1 and 2 have also sustained

injuries, they were referred by the police to the Area Hospital,

Jagitial.

AVR,J & GAC,J Crl.A_538_2014

30. The learned counsel for the appellants strenuously

contends that though the plea of the accused is one of total

denial, there is ample evidence on record to show that there

was free fight at the time of the occurrence of incident,

accused Nos.1 and 2 also sustained injuries, they were

referred to the Area Hospital, Jagitial and a counter case was

also registered and in-fact PW17 is the Investigating Officer in

the counter case and he has charge-sheeted PWs.1 and 5 to 7

and he could not charge-sheet the deceased because of his

death, this evidence available on record would establish that

some other incident also occurred and that the accused have

no intention to kill the deceased and that the offence

punishable under Section 302 of IPC is not made out and at

the most the offence may fall under Section 304 part II of IPC.

31. Reverting back to the facts of the case on hand, it may

be stated that the incident occurred during the intervening

night of 31.12.2011 and 01.01.2012 at about 01:30 A.M. All

the accused have further consumed liquor at the house of

accused No.3 reached the house of deceased, found him

taking rest on a cot in front of the house, enquired about AVR,J & GAC,J Crl.A_538_2014

PW1, beat him indiscriminately with cart-peg and pestle. But

the MOs.1 and 2 sticks were only seized at the instance of

accused Nos.1 and 2 respectively and no such pestle (Rokali

banda) was seized. Further prior to this incident there was

heated exchange of words but in the heat of passion, the

accused did not use any sharp or cutting weapon, the only

weapons seized are two sticks (MOs.1 and 2). The doctor

PW10, who initially treated the deceased suspected fracture of

skull bone and as the deceased was in unconscious state,

advised to shift him to MGM Hospital, whereas he was shifted

to a private hospital at Karimnagar and no such record of

treatment at private hospital is filed and exhibited and the

doctors who treated him in the private hospital at Karimnagar

from 01.01.2012 to 09.01.2012 are neither cited as witness

nor examined by the prosecution. PW16 the doctor who

conducted autopsy has spoken through about the nature of

injuries and opined that the cause of death is head injury and

shock due to haemorrhage. Thus though the incident

occurred and the injuries were caused to the deceased during

the intervening night of 31.12.2011 and 01.01.2012, and he

was given treatment for nine days in a private hospital, no AVR,J & GAC,J Crl.A_538_2014

such medical evidence, oral or documentary is produced by

the prosecution. However, in our considered opinion, the oral

evidence of PWs.1 to 6 and 8 coupled with the evidence of

doctors PW10 and PW16 is sufficient to establish that the

accused have caused indiscriminate assault and some of the

injuries proved to be fatal. By the rashness of their acts the

accused must be treated to be fully aware of the

consequences of their acts including the possible death as

such Section 304 Part I would clearly cover the acts of the

accused and not either Section 304 Part II or Section 302 of

IPC.

32. In this context, we may profitably refer to the judgment

of the Hon'ble Supreme Court in State of Rajasthan Vs.

Punaram1 wherein on identical facts it was held that the High

Court erred in applying Section 304 Part II of the IPC and that

the facts proved would establish the commission of offence

under Section 304 Part I of the IPC, where the accused

persons caused indiscriminate assault and some of the

injuries proved fatal. By the rashness of their acts, the

2017 Crl.J.1184 SC AVR,J & GAC,J Crl.A_538_2014

accused persons must be treated to be fully in knowing the

consequences of their acts including possible death.

Accordingly the Apex Court set aside the judgment and order

under appeal and convicted the accused for the offence under

Section 304 Part I of the IPC.

33. Therefore even accepting the prosecution story in

totality as discussed above as the injuries were not caused on

vital parts of the body except head injury, only MOs.1 and 2

sticks (weapons) were seized and the deceased died after 9

days of occurrence of the incident and also considering the

fact that a counter case was also registered, wherein the

accused Nos.1 and 2 also received injuries and there was

almost a free fight either at the time of the incident or

immediately after this incident, PWs. 1 and 5 to 7 were also

charge sheeted in the counter case and the investigation

officer PW.17 deposed that the deceased could not be charge

sheeted as he died, it cannot be said that the accused had the

intention to murder the deceased and as such, the offence

committed and proved would amount to culpable homicide AVR,J & GAC,J Crl.A_538_2014

not amounting to murder punishable under Section 304, Part

I of the IPC.

34. Thus, when the facts of the present case are tested on

the touchstone of the principles laid by the Hon'ble Supreme

Court in the above decision, the answer is in the positive, the

trial Court has erred in finding the appellants/accused guilty

for the offence punishable under Section 302 of the IPC and it

is a fit case to alter the conviction of the appellants/accused

from the offence under Section 302 of IPC to under Section

304 Part-I of IPC. Accordingly, the conviction and sentence of

the appellants/accused Nos.1 to 5 is hereby altered from

Section 302 of IPC to Section 304 Part-I of IPC.

35. In the result, the Criminal Appeal is partly allowed and

to meet the ends of justice the conviction of appellants/

accused Nos.1 to 5 is altered from the offence punishable

under Section 302 of IPC to the offence punishable under

Section 304 part I read with Section 149 of IPC and the

sentence of life imprisonment is altered and modified to the

sentence of rigorous imprisonment for the period already

undergone since they are in jail from the date of judgment i.e. AVR,J & GAC,J Crl.A_538_2014

from 17.04.2014 in SC No.121 of 2013 and to pay a fine of

Rs.1,000/- (Rupees one thousand only) each, in default to

suffer simple imprisonment for one month each. The

conviction and sentence of the accused for the offence

punishable under Section 148 of IPC is sustained. If the

appellants/accused persons had already paid the said fine

amount as imposed by the trial Court, they shall be set at

liberty forthwith.

36. The appeal is accordingly disposed of and the

appellants/accused Nos.1 to 5 shall be set at liberty forthwith

if they had already paid fine amount as indicated above. The

MO Nos.1 to 4 shall be disposed as ordered by the trial Court.

__________________________________ A. VENKATESHWARA REDDY

_________________________________ G.ANUPAMA CHAKRAVARTHY, J Date :16.09.2022 Abb.