Telangana High Court
CRLA/916/2007 of Gandla Panagari Sailu, Vs The State of A.P., on 30 December 2010
SRI JUSTICE K.C. BHANU AND THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No. 916 of 2007 Date:30.12.2010 Between: Gandla Panagari Sailu … Appellant/Accused And The State of A.P. represented by its Public Prosecutor. … Respondent/complainant For the
THE HON’BLE SRI JUSTICE K.C. BHANUAND
THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO
CRIMINAL APPEAL No. 916 of 2007
Date:30.12.2010
Between:Gandla Panagari Sailu
… Appellant/Accused
And
The State of A.P. representedby its Public Prosecutor.
… Respondent/complainant
For the Appellant : Dr. K. Satyanarayana Rao For the Respondent : Public Prosecutor < Gist:
> Head Note:
? CITATIONS:(2008) 12 SCC 565(2004) 11 SCC 410
THE HON’BLE SRI JUSTICE K.C. BHANUANDTHE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO
CRIMINAL APPEAL No. 916 of 2007
JUDGMENT: (per Hon’ble Sri Justice K.C. Bhanu)
The accused in S.C. No. 384 of 2006 on the file of the VIIAdditional Sessions Judge, (Fast Track Court), Nizambad filed thepresent appeal under Section 374(2) of Cr.P.C., challenging theconviction and sentence recorded by the learned Sessions Judgeagainst the appellant/accused of the offence under section 302 ofI.P.C. and sentencing him to rigorous imprisonment for life and to pay afine of Rs.1,000/- , in default, to suffer simple imprisonment for theemonths.
2. The brief facts that are necessary for the disposal ofthe present appeal may be stated as follows:
3. The deceased is the wife of the accused. They weremarried about fifteen years ago. They were having two school goingchildren. The deceased used to quarrel with the accused to give uphis bad habits. While so, on 16.6.2006 around 10.30 A.M., a quarreltook place between the deceased and the accused and there was analtercation between both of them. Suddenly, the accused got angryand pushed the deceased to the ground and lifted a bag of potassiumweighing about fifty kilo grams and put on the chest of the deceasedand then strangulated her, due to which, she became unconscious. Thereafter, the accused locked the house and called his cousin brother Laxman, P.W.7 and tried to shift the deceased to hospital in anauto rickshaw for treatment, but the deceased died around 1.30 P.M. P.W.1, the brother of the deceased lodged a complaint with the police.Basing on which, a case in crime No.121 of 2006 was registered forthe offence punishable under Section 302 of I.P.C. The Sub-Inspectorof Police, P.W.12, examined the witnesses and recorded theirstatements. He observed the scene of offence, prepared panchanamaand rough sketch, held inquest over the dead body of the deceasedand sent the dead body of the deceased to post mortem examination toGovernment Hospital, Bodhan. Thereafter, P.W.13, the Inspector ofPolice took up investigation and arrested the accused on 20.6.2006and basing on his confession, 50 kilograms potassium bag wasseized. On completion of investigation, he filed the charge sheet.
4. The charge levelled against the accused is that on16.6.2006 at about 12.15p.m., the accused did commit murder byintentionally or knowingly causing the death of Smt.Gandla PangariPrameela, by putting potassium bag on her chest and throttling herneck and thereby, committed an offence punishable under Section 302of I.P.C.
5. When the charge was read over and explained to theaccused in Telugu, the accused pleaded not guilty and claimed to betried.
6. In order to substantiate the case of the prosecution, theprosecution examined P.Ws. 1 to 13 and got marked Exs. P1 to P7.Exs.D1 to D7 were marked on behalf of the accused. The caseproperty is marked as M.O.1.
7. The trial Court, accepting the evidence of P.Ws. 4 to 7,found the accused guilty of the offence under Section 302 of I.P.C. andaccordingly convicted and sentenced the accused as aforesaid.
Challenging the same, the present appeal is filed.
8. Learned counsel representing the accused contendedthat there is no evidence to show that the accused is the assailant ofthe deceased and that there is no evidence to connect the accusedwith the murder of the deceased; that the possibility of some otherperson committing the murder of the deceased cannot be ruled out;that preceding the incident, there is evidence on record, which wouldgo to show that there was a quarrel ensued between the accused andthe deceased and in that quarrel upon a sudden fight, the accused losthis control and pressed the neck of the deceased, but the death is notinstantaneous, so as to infer that the accused has an intention tocommit the murder and therefore, he prays to set aside the same.
9. On the other hand, learned counsel representing theAdditional Public Prosecutor contended that the evidence of P.Ws. 4 to 7 is very clear that on hearing the galata, they rushed to thescene of offence and found the house of the accused locked andP.W.7 opened the lock of the door with the key furnished by theaccused and found the deceased in an unconscious state; that theyimmediately called the local R.M.P., P.W.10, who after examining thedeceased found her to be in a precarious condition and advised themto take her to a hospital for better treatment and that while thedeceased was being shifted to the hospital, she died on the way andthat therefore there is every possibility for the accused to commit themurder of the deceased; that prior to the incident, the accused and thedeceased were alone present in the house, as spoken to by the son ofthe deceased, and that immediately after the incident, the lock of doorwas opened with key given by the accused, that therefore, within allhuman probability, the crime must have been committed by theaccused and none else; and that there are no grounds to interfere with the conviction and sentence imposed against the accused.
10. There is no direct evidence to show that the accusedthrottled the neck of the deceased. The entire case of the prosecutionrests upon circumstantial evidence and when the case rests uponcircumstantial evidence, in view of the decision of the Supreme Courtin Sharad Birdhichand Sarada v. State of Maharashtra (AIR 1984 SC1622), wherein it was held that the following circumstances must befully established by the prosecution before passing conviction. Theyare:
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(1) The circumstances from which the conclusion of guilt is to bedrawn should be fully established; drawn should be fully established;
(2) The facts so established should be consistent with thehypothesis of guilt and the accused, that is to say, they shouldnot be explainable on any other hypothesis, except that theaccused is guilty;hypothesis of guilt and the accused, that is to say, they shouldnot be explainable on any other hypothesis, except that theaccused is guilty;
(3) The circumstances should be of a conclusive nature andtendency;tendency;
(4) They should exclude every possible hypothesis except theone to be proved; andone to be proved; and
(5) There must be a chain of evidence so complete as not toleave any reasonable ground for the conclusion consistentwith the innocence of the accused and must show that in allhuman probability the act must have been done by theaccused.leave any reasonable ground for the conclusion consistentwith the innocence of the accused and must show that in allhuman probability the act must have been done by theaccused.
11. The deceased, Gandla Panagari Prameela, is no other thanthe wife of the accused. P.W.1 is the brother of the deceased. P.W.2is the mother of the deceased. P.W.3 is the son of the deceased andthe accused respectively. P.W.4 is having a toddy shop adjacent tothe house of the accused. P.Ws.4 to 7 were examined by the police to prove the fact that when they were standing at the Hunuman TempleChowrasta, Varni, they heard galata from the house of the accused,and they rushed to house of Accused.
12. P.W.12, who is the Sub-Inspector of Police registered acase and sent the F.I.R. to all the concerned. He proceeded to thescene of occurrence and observed the scene of offence under Ex.P2and drafted the rough sketch under Ex.P3 in the presence of P.W.8others. He also examined the witnesses, held inquest in the presenceof the mediators. The inquest mediators opined that the deceaseddied as a result of pressing the neck as they found nail marks on theneck of the deceased. After inquest, the dead body was subjected topostmortem examination.
13. P.W.11 is the doctor, who conducted postmortem on thedead body of the deceased and found the following ante morteminjuries:
1. Lenior contusion over antero lateral part on right side ofneck measuring about 2” to 2½” in length and ½” inbreadth, extra laceration of blood, noticed on cut section. neck measuring about 2” to 2½” in length and ½” inbreadth, extra laceration of blood, noticed on cut section.
2. Contusion ½” x ½” on left side of neck.
3. Timpanic membrane perforated right side with driedblood right side of ear.blood right side of ear.
14. On internal examination, he found patechial haemorrhageson both cerebral hemispheres and also noticed multiple nail scratchesover lateral part of the neck and the neck of the deceased wasswollen. He opined that the death of the deceased was due tothrottling and issued Ex.P6, postmortem examination. Nothing hasbeen elicited to discredit the testimony of P.W.11 and the recitals inEx.P6 and the homicidal nature of the death of the deceased isestablished beyond all reasonable doubt.
15. P.W.1, who is the brother of the deceased is a resident ofChandoor Village. On coming to know about the incident, he rushed tothe scene of occurrence and his evidence would only go to show thathe came to know about the incident through the village elders; that theaccused furnished the key of the house to the elders and they openedthe house of the accused and found the deceased lying in anunconscious state.
16. The evidence of P.W.2 is also is almost more or less similarto the evidence of P.W.1.
17. Admittedly, P.Ws. 1 and 2 are residing in Chandoor Villageand they came to know about the death of the deceased at about 2.00p.m. By the time, they visited the house of the accused, the accusedwas not present. Therefore, the evidence of P.Ws. 1 and 2 is not muchhelpful to the case of the prosecution. To the fact in issue.
18. P.W.3 is the son of the deceased and accused. He wasstudying 8[th] class. According to him, on the date of incident, i.e. on16.6.2006, at about 9.30 A.M., he along with his brother went to schooland during interval, they both came to the house at 11.30 a.m. and atthat time, the deceased and the accused were quarrelling with eachother. The deceased questioned the accused for supply of foodmaterial, for which, the accused answered that she would do in anymanner she like and that he would continue gambling, drinking alcoholetc. The accused sent them to school. Again, during lunch time, atabout 1.00 P.m., when they returned from the school, they found thedead body of the deceased.
19. Therefore, from the evidence of P.W.3, it is clearthat by 11.30 a.m., the accused and the deceased were alone presentin the house. There is no other reason for him to speak falsehoodagainst the accused.
20. In evaluating the evidence of a child witness, careand caution should be taken. If the evidence is found to beacceptable, it can be acted upon. On this aspect, it is pertinent to referto a decision in Nivrutti Pandurang Kokate v. State ofMaharashtra([[1]]), wherein the Supreme Court observed thus:
“The decision on the question whether the child witness hassufficient intelligence primarily rests with the trial Judge whonotices his manners, his apparent possession or lack ofintelligence, and the said Judge may resort to any examinationwhich will tend to disclose his capacity and intelligence as well ashis understanding of the obligation of an oath. The decision of thetrial court may, however, be disturbed by the higher court if fromwhat is preserved in the records, it is clear that his conclusion waserroneous. This precaution is necessary because child witnessesare amenable to tutoring and often live in a world of make-believe.Though it is an established principle that child witnesses aredangerous witnesses as they are pliable and liable to be influencedeasily, shaken and moulded, but it is also an accepted norm that ifafter careful scrutiny of their evidence the court comes to theconclusion that there is an impress of truth in it, there is noobstacle in the way of accepting the evidence of a child witness.”
21. It is quite possible for the children like P.W.3 tocome to the house during interval and again go to the schoolimmediately thereafter, after spending some time in the home. Again,they returned at abut 1.00 p.m. during lunch recess and at that time,the body of the deceased was lying inside the house. It is suggestedto P.W.3 that as per the instructions of the relatives of deceased, hewas deposing falsely. He denied the same. If really, P.W.1 andP.W.2 who are brother and mother of decesaed respectively tutoredP.W.3 to give false evidence, P.W.3 would have definitely stated aboutthe accused strangulating the deceased. Thus in our opinion, P.W.3 isa witness of truth and he testified about the facts which are within his exclusive knowledge.
22. P.Ws. 4 to 7 were examined by the police to showthat it is the accused, who handed over the key to them and P.W.7opened the lock of the door of house of the accused with the keyfurnished by the accused and found the deceased lying in anunconscious state. According to them, when they heard the galata,they immediately rushed to the house of the accused and found theaccused in front of the house and on questioning the accused, theaccused gave key of his house to P.W.7, who opened and found thedeceased in an unconscious state. That they immediately calledP.W.10, local Registered Medical Practitioner for treatment, who cameto the house of the accused and found the deceased in a criticalcondition and in the meanwhile, P.W.1 came to know about theincident along with his mother rushed to the village of the accused andwhile the deceased was being taken to the hospital, she died on theway at about 1.30 p.m., on 16.6.2004, the dead body was brought backto the house of the accused and kept there. The house of the accusedis a tiled house, which is having only one entrance as seen from Exs.P2 and P3, scene of observation and rough sketch, respectively.Therefore, there is no scope or possibility for any third person to enterinto the house.
23. It is clear from the evidence of P.Ws. 4 to 6 that whilethey were present at Hanuman Temple chowrastha at Varni, P.W.7came there and informed that some galata was going on and they wentto the house of the accused and at that time, the accused was standingoutside his house. The accused gave the key to P.W.7, who openedthe lock, whereas the evidence of P.W. 4 would go to show that onhearing some galata, he rushed to the house of the accused and foundsame to be locked. As the house of P.W.4 is also shown in Exs. P2
and P3, scene of offence and rough sketch respectively and since heis selling toddy, there is every possibility for him to be present at histoddy shop and on hearing the cries, there is every possibility for himto rush to the house of the accused. He also noticed blood on theforehead of the accused. When he enquired the accused, the accusedinformed him that there was a quarrel between himself and thedeceased; that the accused gave the key, P.W.7 opened the lock of thehouse and found the deceased lying in an unconscious state. Theyalso found finger marks in and around the throat of the deceased.
24. Therefore, the evidence of P.Ws. 4 to 7 wouldclearly go to show that they rushed to the scene of occurrence andafter opening the lock with the key given by the accused, they foundthe deceased lying in an unconscious state. Therefore, from theevidence of P.Ws. 4 to 7 it is quite clear that the accused has got anopportunity to kill the deceased and there was no possibility for anythird person to commit the murder of the deceased. In the cross-examination of P.Ws. 4 to 7, some contradictions are elicited, whichare marked as Exs. D2 to D6. In Ex.D2, P.W.4 has stated that hecaught hold of the hand of the deceased and checked the pulse and itwas beating. P.w.5 stated before the police that by the time, he went tothe house of the accused, Balagoud and Laxman were present. P.W.6stated before the police that by the time he went there, only GandlaLaxman, Balagoud, Nagabhushanam were at the house of theaccused. P.W.7 stated before the police that Dr. Mahender Goudexamined her and declared her as dead. So, these contradictionsrecorded under Exs. D2 to D6, elicited in the cross-examination ofP.Ws. 4 to 7, are innocuous and they do not go to the root of the caseof the prosecution. These contradictions are bound to occur even incase of truthful witnesses and they can be said to be innocuous. Since P.Ws. 4 to 7 are independent witnesses and there is no other reasonfor them to foist a false case against the accused, their evidence canbe accepted.
25. So, from the above circumstances, it is quite clearthat it is the accused and none else is the assailant of the deceased.
26. Now, what is to be seen is whether the accused hascommitted the offence under Section 302 of I.P.C. ?
27. The death of the deceased is not in dispute. Accordingto the prosecution, about 2.00 p.m. while the deceased was beingshifted to the hospital, she died on the way. There is evidence to showthat a quarrel ensued between the accused and the deceasedpreceding the incident. There is no motive for the accused to committhe murder of the deceased. Except pressing the neck, he has notcaused any other injuries. Further, the doctor, who conducted thepostmortem examination has not stated that the injuries found on thebody of the deceased are sufficient to cause death in the ordinarycourse or at any rate, they are likely to cause instantaneous death ofthe deceased. Exception 4 can apply only if all the four conditions laiddown are satisfied (i) absence of premeditation (ii) theremust be a sudden fight (iii) the killing must be heat of passion upon asudden quarrel and (iv) the offender should not have taken undueadvantage or acted in a cruel or unusual manner. The first part ofSection 304I.P.C. is intended only on those cases in which the act ofthe accused person would be culpable homicide amounting to murder,but to the fact that it was committed in circumstances which render oneor other of the exceptions in Section 300 I.P.C. applicable. The firstpart of the section postulates a more serious class of offences wherethe Courts can infer that there is a clear intention. On this aspect, it ispertinent to refer to a decision in Sachchey Lal Tiwari vs State Of Uttar Pradesh & Others([[2]]).
Of Uttar Pradesh & Others([[2]]).
“The Fourth Exception of Section 300, IPC covers acts done in asudden fight. The said exception deals with a case of prosecution notcovered by the first exception, after which its place would have beenmore appropriate. The exception is founded upon the same principle, forin both there is absence of premeditation. But, while in the case ofException 1 there is total deprivation of self-control, in case of Exception4, there is only that heat of passion which clouds men's sober reasonsand urges them to deeds which they would not otherwise do. There isprovocation in Exception 4 as in Exception 1; but the injury done is notthe direct consequence of that provocation. In fact Exception 4 deals withcases in which notwithstanding that a blow may have been struck, orsome provocation given in the origin of the dispute or in whatever waythe quarrel may have originated, yet the subsequent conduct of bothparties puts them in respect of guilt upon equal footing. A 'sudden fight'implies mutual provocation and blows on each side. The homicidecommitted is then clearly not traceable to unilateral provocation, nor insuch cases could the whole blame be placed on one side. For if it wereso, the Exception more appropriately applicable would be Exception 1.There is no previous deliberation or determination to fight. A fightsuddenly takes place, for which both parties are more or less to beblamed. It may be that one of them starts it, but if the other had notaggravated it by his own conduct it would not have taken the serious turnit did. There is then mutual provocation and aggravation, and it is difficultto apportion the share of blame which attaches to each fighter. The helpof Exception 4 can be invoked if death is caused (a) withoutpremeditation, (b) in a sudden fight; (c) without the offender's havingtaken undue advantage or acted in a cruel or unusual manner; and (d)the fight must have been with the person killed. To bring a case withinException 4 all the ingredients mentioned in it must be found. It is to benoted that the 'fight' occurring in Exception 4 to Section 300, IPC is notdefined in the IPC. It takes two to make a fight. Heat of passion requiresthat there must be no time for the passions to cool down and in this case,the parties have worked themselves into a fury on account of the verbalaltercation in the beginning. A fight is a combat between two or morepersons whether with or without weapons. It is not possible to enunciateany general rule as to what shall be deemed to be a sudden quarrel. It isa question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For theapplication of Exception 4, it is not sufficient to show that there was asudden quarrel and there was no premeditation. It must further be shownthat the offender has not taken undue advantage or acted in cruel orunusual manner. The expression 'undue advantage' as used in theprovision means 'unfair advantage'.”
Therefore, it is a case of culpable homicide not amounting tomurder and falls under Exception 4 of Section 300 I.P.C. and it ispunishable under Section 304 Part-I of I.P.C.
28. Hence, it cannot be said that the accused pressed theneck of the deceased with an intention to kill her, but it was precededby a sudden quarrel. Therefore, it would amount to committing of anoffence under Section 304 Part-I of I.P.C.
29. In the result, the conviction and sentence recorded bythe VII Additional Sessions Judge (Fast Track Court), Nizamabad at Bodhan vide judgment dated 26.4.2007 in Sessions Case No.384 of2006 against the appellant/Accused of the offence punishable underSection 302 of I.P.C. are set aside. However, appellant/accused isfound guilty of the offence punishable under Section 304 Part–I ofI.P.C. and accordingly he is convicted and sentenced to undergorigorous imprisonment for seven years.
30. The remand period undergone by theappellant/accused during the course of investigation, trial and afterconviction shall be given set off under Section 428 of Cr.P.C.
31. The appeal is partly allowed to the extent indicated above.
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Date: 30[th] December, 2010
__________________________
N.R.L. NAGESWARA RAO,J
Note: L.R. Copy to be marked.
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[2](2004) 11 SCC 410