Criminal Appeal No.66 of 2011 02-02-2017 1)Meenuga Yadaiah 2)Marka Ramulu 3)Meenuga Yellaiah. Appellants/Accused Nos.1 to 3 ...Petitioner The State of A.P.Rep by its Public Prosecutor,High Court of A.P, Hyderabad..Respondent

THE HONBLE SRI JUSTICE SURESH KUMAR KAIT AND THE HONBLE SRI JUSTICE U.DURGA PRASAD RAO                

Criminal Appeal No.66 of 2011

02-02-2017

1)Meenuga Yadaiah 2)Marka Ramulu 3)Meenuga Yellaiah. Appellants/Accused Nos.1      
to 3 ...Petitioner

The State of A.P.Rep by its Public Prosecutor,High Court of A.P, Hyderabad..Respondent

Counsel for Appellants: Smt. A.Gayatri Reddy

Counsel for Respondent   : Public Prosecutor (Telangana)

<Gist:

>Head Note:

? Cases referred:

THE HONBLE SRI JUSTICE SURESH KUMAR KAIT        
AND
THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO          
CRIMINAL APPEAL No.66 of 2011  
JUDGMENT: (per Honble Sri Justice U.Durga Prasad Rao)  
        This appeal is filed by A1 to A3 against the judgment dated
08.12.2010 in S.C.No.220 of 2010 on the file of Sessions Judge,
Mahabubnagar whereby they were convicted for the offences punishable
under Section 302 r/w 34 IPC and sentenced to undergo imprisonment
for life and to pay fine of Rs.1,000/- each in default to suffer SI for two
months.
2)      The case of prosecution in brief is as under:
a)      On 07.04.2009, Meenuga Gunna (PW5) lodged a complaint before  
the Sub-Inspector of Police, Jedcherla (PW6) stating that on 06.04.2009
she along with her husbandAnjaneyulu (deceased) went to Gouri
Shanker Colony at Badepalli village to attend 3rd day ceremony of her
sisterRanemma. The accused 1 to 3 also attended the said ceremony.  
While so, A3 took the complainant by the side of huts and started
chitchatting. On seeing the same, the deceased suspected her and abused
A3 that Aha Kanthri Lanjakodukula tho yemi Matladuchunnavu (why
you are talking with that kantri bastards). On hearing the same, A3 asked
the other accused to beat the deceased. Immediately A1 caught hold of
deceased and started beating him with hands. In the meantime, A2 lifted
the deceased and threw on the ground causing head injury. At the same
time, A3 also intervened and gave fist blows to him and pressed his
testicles and murdered on the spot. The complainant informed about the
incident to her brothers-in-law (PWs.1 and 2) at first and then gave
complaint.
b)      The police registered a case in Crime No.153 of 2009 and after
investigation filed the charge sheet against the accused before the
Judicial First Class Magistrate, Jedcherla. The learned Magistrate after
following the procedure committed the case to Court of Sessions.
Learned Sessions Judge, Mahabubnagar conducted trial. A1 to A3 were
charged for the offence under Section 302 r/w 34 IPC.
c)       On behalf of the prosecution, PWs.1 to 7 were examined and
Exs.P1 to P6 were marked. No witness was examined and no document    
was marked on defence side.
d)      The trial Court after full-fledged trial found A1 to A3 guilty of the
offence under Sections 302 r/w 34 IPC and accordingly convicted and
sentenced them as aforesaid. Questioning the conviction and sentence
A1 to A3 are before us in this appeal.
3)      Heard arguments of Smt.A.Gayatri Reddy, learned counsel for
appellants/A1 to A3 and learned Public Prosecutor (Telangana).
4)      Learned counsel for appellants submitted that appellant
No.1/A1Meenuga Yadaiah died pending appeal. Though the said  
intimation is not received from Central Prison, Cherlapally where A1
was lodged, the District Judge, Mahabubnagar vide his letter Dis.No.420
dated 30.01.2017, submitted that as per the information received from
the Superintendent of Jail, Central Prison, Cherlapally, the convict
prisonerMeenuga Yadaiah (A1) expired at Gandhi General Hospital,
Secunderabad on 28.06.2012 while undergoing treatment for HIV. In
that view, the appeal so far as A1 is concerned is dismissed as abated.
5a)     Challenging the conviction, learned counsel for appellants firstly;
argued that accused were innocent and they were falsely implicated in
the case which is evident from the fact that when the death of deceased
took place on the night of 06.04.2009 at about 8.00 PM and the
Jedcherla PS was only at a distance of 2 KMs. from the scene of offence
i.e. Gouri Shanker Colony in Badepalli village, the FIR was lodged
belatedly on the next day i.e. 07.04.2009 at about 10.00 AM which
indicates that the complainant took inordinate time only to implicate the
accused.
b)      Secondly, it was argued that the incident took place on the night of
3rd day function following the death of elder sister of PW5 and by
custom the persons attending the said function would consume alcohol
and admittedly the deceased was habituated to consume alcohol,
accordingly consumed alcohol and in that situation he fell down and
sustained injuries and died in an inebriated condition. However, the
complainant and police have foisted a false case against the accused due
to some grudges.
c)      Thirdly, it is argued that except PW5 no other eye-witnesses were
examined though there were huts in and around the scene of offence and
inmates were there. PW5 was none other than the wife of the deceased
and she was highly interested witness and hence, her sole testimony
could not have been relied upon by the trial Court to convict the accused.
Further, the testimony of PW5 is not trustworthy as she deposed as if,
during the course of accused beating her husband, A3 squeezed the
testicles of her husband but in Ex.P5post-mortem report and in the
evidence of PW4post-mortem doctor, no injuries were identified on
the testicles of the deceased which implies that PW5 gave false evidence
to implicate the accused.
d)      Finally and alternatively, learned counsel would argue that even if
the entire case of the prosecution is believed, still the offence would not
fall under Section 302 IPC since the prosecution case would not show
that there was any intention and knowledge on the part of accused to kill
the deceased. She thus prayed to allow the appeal and acquit the
accused.
6a)     Per contra, while supporting the judgment, learned Public
Prosecutor would argue that the offence took place in the night time in
the tamarind tope by the side of huts in Gowri Shankar Colony and in
that view there was no possibility of presence of independent eye-
witnesses. As per deposition of PW5 is concerned, he would argue, her
presence cannot be doubted because the entire galata took place in the
backdrop of PW5 having illicit intimacy with A3 and when her talking
with A3 and other accused in the night time at the scene of offence was
seen and abused by the deceased, the accused attacked him and beat him  
indiscriminately and killed him. Therefore, the facts and evidence would
manifest that PW5 was a definite eye-witness to the incident.
b)      Regarding veracity of her evidence, learned Public Prosecutor
argued that merely because PW5 gave report on the next day, by that
count her evidence and prosecution case need not be doubted for the
reason that the incident took place not in the native village of the
deceased i.e Kaverammapet but in the neighbouring village of sister of
PW5 i.e. Badepalli and therefore, PW5 after giving intimation to her
brothers-in-law (PWs.1 and 2) had to wait till their arrival and thereafter
she gave report to the police on the next day morning.  Regarding her
evidence that A3 squeezed the testicles of her husband, learned Public
Prosecutor argued that since no specific external injury was caused to the
testicles, the post-mortem doctor might not have noticed any injuries and
on that count her evidence cannot be disbelieved. He argued that the
accused failed to bring-forth any enmity for the prosecution side to
implicate them in the case. While praying to dismiss the appeal he fairly
conceded that the offence would not fall under Section 302 IPC.
7)      The points for determination in this appeal are:
1)      Whether the deceasedMeenuga Anjaneyulu met with    
homicidal death on the night of 06.04.2009 near the
tamarind trees in Gowri Shankar Colony of Badepalli
village
2)      If point No.1 is held in affirmative, whether the accused are
responsible for his death and whether prosecution could able
to establish their guilt beyond reasonable doubtS
8) POINT NO.1:   That the death of deceasedMeenuga Anjaneyulu  
occurred on the night of 06.04.2009 at the scene of offence i.e. near
tamarind trees in Gowri Shankar Colony of Badepalli village was not in
dispute. The nature of death is concerned, in Ex.P4post-mortem report
it is mentioned that the following external injuries were found.
1. A laceration 2 x  cm. scalp deep on left side of occipital
region.
2.  Abrasion 1 x 1 cm. on the left shoulder.
In Ex.P4 it is further mentioned that the cause of death was due to
multiple injuries including injury to vital organ i.e. brain leading to
haemorrhage and shock. PW4Post-mortem doctor was testified to  
prove Ex.P4.  He too deposed in similar lines and further stated that the
two external injuries found by him were antemortem in nature and might
have been caused by blunt object. He stated that during the time of
external examination he found fracture of occipital bone on the left side.
In the cross-examination he stated that he did not find any other injuries
except the injuries mentioned in port-mortem report. He admitted that
the injuries found in Ex.P4 are possible due to fall of a person from a
tree or from a considerable height over a stone or any hard surface. This
is the evidence relating to cause of death of the deceased.
9)      The contention of accused, as already stated supra, was that the
death might not be homicidal one and the deceased in a drunken state
might have fallen either from a tree or from a considerable height and
got injured and died. At the out set, this argument does not carry any
conviction. There is no positive evidence to hold that the deceased was
under the influence of alcohol before his death. In Ex.P4 under the head
Abdomen, it was clearly mentioned that abdominal wall, peritoneal
cavity, stomach and contents were intact and empty. Thus, no alcohol
contents were found in the stomach of the deceased so as to infer that he
was in a drunken state before his death. It is true that PW1 admitted in
his cross-examination that the deceased was in habit of consuming
arrack in the evenings and on the day when he attended the funeral of
sister of PW5 also he consumed arrack. However, his knowledge about
the deceased consuming arrack on the night of incident is highly
doubtful because this witness is a resident of Kaverammapet and only
after the intimation of PW5 he came to Badepalli long after the incident.
Hence, his evidence in this regard cannot be given due weight that too
when the post-mortem report militates against his statement. Further, the
very same witness denied the suggestion that the deceased received
injuries when he fell down in a drunken condition and died. Therefore,
his evidence cannot be taken advantage by the accused. Similar
suggestion was given to PW2 who is another brother of the deceased and
who is also resident of neighbouring village Kaverammapet. His version
was that deceased was having the habit of consuming arrack and he did
not know whether deceased consumed arrack on the date of incident or
not. He denied the suggestion that his elder brother died on account of
falling down in a drunken condition. Similar suggestion was given to
PW5 also. Her answer was that on the date of incident her husband did
not take alcohol. She denied that her husband took alcohol and died on
account of falling down accidentally in a drunken condition. So, from
the oral and documentary evidence available on record, there is no
possibility to conclude that deceased was under the influence of alcohol
before the incident and hence the possibility of his falling accidentally
and getting injured in such condition can be safely overruled. Sofaras the
possibility of his falling from a tree is concerned, it should be noted,
incident occurred in the night time at about 7.00 PM. It would be highly
improbable to conclude that during such night time one would climb tree
only to fall down. Thus, ruling out the remote possibilities of deceased
getting injured due to accidentally falling from a tree or in a drunken
state, the obvious conclusion would be that he met with homicidal death.
        This point is answered accordingly.
        It has now to be seen whether the accused were responsible for
such homicidal death in point No.2 infra.
10) POINT No.2:   Prosecution case precisely is that PW5 had illicit
intimacy with A3 and on the night of incident when she was talking with
A3 and other accused at the scene of offence, the deceased saw them and
abused and thereby all the accused beat him indiscriminately and caused
his death. Prosecution projected lone eye-witness i.e. PW5. As rightly
argued by learned Public Prosecutor, there can be no demur that PW5
was the eye-witness since the entire episode leading to the death of the
deceased was occurred on account of her. Hence, the question is whether
her evidence is trustworthy to establish the guilt of the accused.
11)     In her evidence PW5 deposed that about one year ago she went to
the house of her elder sister who passed away and all the three accused
came there and they were talking with each other and she also went there
and talked with A3. At that time her husband came and called her and
questioned as to why she was talking with A3. Meantime, all the accused
attacked her husband; A1 beat him and A2 lifted her husband and threw
to the ground due to which he sustained injuries on the back and head
and after his falling A3 sat on him and squeezed his testicles.  She stated
that she gave Ex.P5complaint to the police. This is her version with
regard to incident. She was extensively cross-examined but nothing
useful could be extracted to impeach credibility of her evidence. It was
simply suggested that with regard to incident she was speaking
falsehood which she denied. It was not even suggested that accused did
not come to scene of offence at the relevant time. It was also not
extracted in the cross-examination about the existence of any enmity
between the accused and the deceased so as to speak falsehood about the
accused.
12)     Accordingly, as rightly observed by the trial Court, there is no
reason to discard the evidence of PW5. Her evidence was sought to be
discredited firstly on the argument that as per PW5, A3 squeezed the
testicles of the deceased but however, neither in the evidence of PW4
nor in Ex.P4port-mortem report any injuries were mentioned on the
testicles of the deceased and therefore, she was speaking falsehood. It is
true that PW4 admitted except two injuries mentioned in Ex.P4, he did
not find any other injuries. However, we will find in Ex.P3inquest
report that the inquest witnesses found some abrasions on the testicles
and they were swollen.  Probably PW4 either might have missed this
aspect during post-mortem or by the time he conducted autopsy the
swelling might not be prominent to attract his attention. Be that it may,
the testimony of PW5 cannot be held as false as it gets corroboration
from Ex.P3.
13)     The next argument to impeach her credibility is on the ground of
delay in lodging FIR. The incident was admittedly occurred between 7
and 8.00 PM on 06.04.2009 and FIR was lodged at 10.00 AM on  
07.04.2009 with Jedcherla PS. The distance between Jedcherla PS and
scene of offence is about 2 kms. Thus, the delay is writ large but the
explanation of PW5 is also worth mentioning. She stated that after the
incident she telephoned to her elder sisterNarasamma, the wife of
PW1 who are residents of neighbouring village Kaverammapet; on her
information PW1 and others came to Badepalli at night. After all of them
saw the dead body, PW5 went to her villageKaverammapet and met  
the Sarpanch of her village and got drafted Ex.P5 through him and then
went to Jedcherla PS which is at a distance of 5 kms. from
Kaverammapet and presented the report to police at 10.00 AM on
07.04.2009. As observed by the trial Court, PW5 is an illiterate and
belonging to pig rearing community and she was in a bereaved condition
due to death of her husband that too in a neighbouring village.  In those
circumstances, she waited till the relations of her husband came to
Badepalli from Kaverammapet and after consoling themselves, it
appears, she again went to Kaverammapet and contacted their Sarpanch
and got prepared Ex.P5 and approached Jedcherla PS and presented  
report. Hence, the delay is inevitable in those circumstances. It must be
noted that delay in lodging FIR will not always be fatal to the case of the
prosecution. If delay is properly explained and Court is satisfied that if
the complainant has not purposefully delayed in lodging of FIR and
prosecution has not taken undue advantage out of it, such delay can be
excused. The present case was not a political murder so as to gain time
by prosecution party to implicate innocents in the opposite party. Hence,
the argument advanced in our considered view, would not mitigate the
credibility of PW5. The injuries spoken by her were corroborated by
PW4 and Ex.P3. Thus, her testimony clearly establishes the guilt of the
accused in causing death of the deceased.
14)     Now, coming to the nature of the offence, the facts and evidence
would depict there was no previous enmity between accused and 
deceased. It was not a case of pre-meditated and pre-planned murder.
In a spur of moment, when the deceased abused PW5 and accused, they    
attacked the deceased and indiscriminately beat him and caused his
death. Admittedly, no weapon was used for causing the injuries.
Further, the injuries are concerned, there was only one vital injury on the
left side of occipital region. No injury on testicle was mentioned in
Ex.P4. From all these, it can be inferred that the accused had no
intention to cause the death of the deceased. Therefore, first clause in
Section 300 IPC which speaks of intention, can be said to be absent in
the instant case. Clauses 2 to 4 mentioned in Section 300 IPC are
concerned, no doubt there was an intention on the part of accused to
cause bodily injury to the deceased but it cannot be inferred that they had
requisite knowledge that their act would cause the death of the deceased.
PW4post-mortem doctor did not specifically state that injuries found
by him were sufficient in the ordinary course of nature to cause death.
For all these reasons, in our considered opinion, the act committed by
the accused is a culpable homicide not amounting to murder and hence 
they are liable to be punished under Section 304 PartII IPC.
        This point is answered accordingly. Consequently, the impugned
judgment dated 08.12.2010 is hereby modified.
15)        In the result, accused Nos.2 and 3 are found guilty of the charge
Culpable Homicide not amounting to murder and each of them is 
sentenced under Section 304 PartII IPC to undergo R.I for a term of
Seven(7) years and pay fine of Rs.1,000/- and in default of payment of
fine to suffer S.I for two(2) months. The remand period, if any, shall be
given set off.
16)     As A1 is concerned, the appeal is dismissed as abated.
17)     This Criminal Appeal is partly allowed to the extent mentioned
above.

     As a sequel, miscellaneous petitions, pending if any, shall stand
closed.
______________________  
SURESH KUMAR KAIT, J    
__________________________  
U. DURGA PRASAD RAO, J    
Date: 02.02.2017