CRLA/571/2007 of Boya Chinna Chinnaiah Vs The STate of A.P. through Inspector of Police on 31 December 2013

JUDGMENT:

1. This appeal is filed by the appellant-accused against theconviction and sentence imposed by the II Additional Sessions Judge(Fast Track Court), Adilabad in S.C.No.156 of 2006 vide judgmentdated 30.11.2006.

2. Brief facts of the case are as follows:

On 14.1.2006 at about 9 p.m., the accused picked up a quarrelwith his wife-P.W.8 and beat her over an issue for not preparinganything on the eve of Sankranthi festival. Due to that, P.W.8 came tothe house of her brother-in-law (P.W.5) and took shelter there. Theaccused while searching for his wife came to the house of P.W.5 andcaught hold of his wife, proceeded to his house by dragging her. Thenephew of the accused viz., Gangadhar (for short, ‘the deceased’) andP.Ws.2 to 4 followed the accused. After reaching the house of theaccused, the deceased questioned the accused as to why he wasbeating P.W.8, for which, the accused became angry and asked himas to who was he to question him. While asking the deceased assuch, the accused kicked the deceased over his testicles and tried tokill him by breaking a glass bottle, as a result of which, the deceasedfell down there. When P.Ws.2 to 4 tried to pour water to the deceased,he could not swallow the water and he had succumbed to the injuriessustained by him. Hence, P.W.1 presented a report, basing on whicha case was registered and investigated into. After completion of theinvestigation, charge sheet was filed.

3. The learned trial Judge framed a charge under Section 302 IPCagainst the accused, read over and explained to him for which hepleaded not guilty and claimed to be tried.

4. During the course of trial, P.Ws.1 to 13 were examined andExs.P1 to P15 and M.O.1 were marked on behalf of the prosecution. No oral or documentary evidence was adduced on behalf of theaccused.

5. On appreciation of oral and documentary evidence, the trialCourt found the appellant-accused guilty for the offence under section304 Part II IPC instead of Section 302 IPC. Hence, the trial Courtconvicted and sentenced him to undergo rigorous imprisonment for aperiod of five years and to pay a fine of Rs.10,000/- in default to suffersimple imprisonment for three months for the offence under Section304 Part II IPC. Aggrieved by the conviction and sentence imposed bythe trial Court, the appellant-accused filed the present appeal.

6. The learned Counsel for the appellant-accused submitted thatthere is no previous enmity between the accused and the deceasedand that there was no intention on the part of the appellant-accused tokill the deceased and that the deceased received injuries as heintervened in the scuffle that was taking place between the accusedand his wife (P.W.8). Therefore, the conviction and sentence imposedby the trial Court are liable to be set aside.

7. The learned Public Prosecutor submitted that the prosecutionhas established the guilt of the accused beyond all reasonable doubtfor the offence under Section 304 Part II IPC and the trial Court hasrightly convicted the accused and there are no substantial reasons tointerfere with the judgment under appeal and therefore, the appeal isliable to be dismissed.

8. Now, the point that arises for consideration in this appeal is :“Whether the prosecution has proved the guilt of the accused forthe offence under section 304 Part II IPC beyond all reasonable doubt?”

9. POINT: P.Ws.2 to 5 are the eye witnesses to the incident. It is tobe examined as to whether their evidence inspires confidence of thisCourt or not.

10. P.W.1 –brother of the deceased deposed that he was informedthat the accused had beaten the deceased-Gangadhar.

11. P.W.2 deposed as follows:

On Sankaranthi day, the accused had beaten his wife (P.W.8)on the ground that she did not prepare special items for the festival andthen, she came to the house of P.W.5-Narsaiah, younger brother of theaccused. At about 9.00 p.m., the accused came to the house of P.W.5and took away his wife by dragging her. Then, himself, the deceasedand L.Ws.3 to 5 followed the accused apprehending that the accusedmay again beat his wife. After reaching there, the deceasedquestioned the accused as to why he was beating P.W.8. Then, theaccused came back and questioned the deceased as to who he was toquestion him and so saying, he kicked the deceased on his testicles,as a result of which, the deceased fell down on Laxmi. Though waterwas poured to him, he could not gulp the water as he dead. In themeantime, the accused had broken a glass bottle and came upon thedeceased to stab him. Then, he (P.W.2) took the bottle from theaccused and threw it away.

12. P.Ws.3, 4 and 5 deposed in the same lines as spoken to byP.W.2. The evidence of P.Ws.2 to 5, who are the eye witnesses intheir cross-examination remained unshaken. Further, it is apparentthat P.Ws.2 to 5 are the relatives of the accused and particularly, P.W.5is the real brother of the accused. Therefore, there is nothing on recordto disbelieve their evidence.

13. P.W.11-Civil Assistant Surgeon, who conducted post mortemexamination, deposed that the cause of death is due to Neurotic shock due to severe pain and injury to the sensitive Vital Organ (Testicles).

14. The evidence of P.Ws.2 to 5 coupled with the medical evidenceclearly establishes that the deceased died due to the injury caused bythe accused on his vital organ. However, it is apparent on the face ofthe record that there was no intention or motive on the part of theaccused to kill the deceased. When the deceased asked the accusedas to why he was beating P.W.8, the accused got angry and kicked thedeceased on his vital organ. Hence, the offence falls under Section304 Part II IPC.

15. In view of the foregoing discussion, this Court is of the view thatthe trial Court has rightly convicted the appellant-accused for theoffence under Section 304 Part II IPC and therefore, the judgment ofthe trial Court does not warrant any interference. Accordingly, thepoint is answered.

16. At this stage, the learned Counsel for the appellant-accusedconfined his arguments with regard to the sentence of imprisonment. He submitted that the appellant has to look after his children and he isa poor person and he approached the legal services authority for legalaid and he is not in a position to pay the fine amount, which isexorbitant.

17. Considering the facts and circumstances of the case and in viewof the fact that occurrence took place in a sudden provocation amongthe relatives and that the accused has no intention to cause the deathof the deceased, this Court is inclined to modify the sentence ofimprisonment.

18. In the result, the conviction recorded by the learned II AdditionalSessions Judge (FTC) Adilabad, against the appellant-accused inSessions Case No.156 of 2006 for the offence under Section 304 PartII IPC vide judgment dated 30.11.2006 is hereby confirmed. But however, the sentence of imprisonment imposed by the learned IIAdditional Sessions Judge is modified to that of two (2) years rigorousimprisonment. The sentence of fine is set aside.

19. The period already undergone by the appellant-accused shallbe set off under Section 428 Cr.P.C.

20. The appellant-accused is directed to surrender before the Courtconcerned on or before 15[th] February, 2014. In default, the Courtconcerned is at liberty to take appropriate steps in accordance withlaw.

21. Accordingly, the Criminal Appeal is partly allowed.

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RAJA ELANGO, J

31[st] December, 2013

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THE HONOURABLE SRI JUSTICE RAJA ELANGO

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CRIMINAL APPEAL NO.571 OF 2007

31.12.2013