Partly allowed

Kondeti Sudhakar, Krishna Dt. and Anr., v. State of Ap., Rep Pp.

Andhra Pradesh HC14 Nov 2022CRLA/431/2015

Case brief

AI extract

What is this about?

In a common appeal against conviction for murder under Section 302 IPC arising from a sudden altercation at a shop, the High Court held that the circumstances evidenced E4 exceptions. The Court acquitted three appellants, convicted the fourth under culpable homicide not amounting to murder, and modified the sentence to ten years.

What did the court decide?

Accused Nos. 2 to 4 acquitted; Accused No. 1 convicted under Section 304 IPC and sentenced to ten years rigorous imprisonment.

Kondeti Sudhakar, Krishna Dt. and Anr… — Murder and Culpable Homicide | Andhra Pradesh HC (2022)

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THE HON’BLE SRI JUSTICE C. PRAVEEN KUMAR

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AND

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HON’BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI

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Criminal Appeal No. 431 of 2015

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Criminal Appeal No. 534 of 2015

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And

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Criminal Appeal No. 509 of 2016

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COMMON JUDGMENT : ( Per Hon’ble Sri Justice C.Praveen Kumar)

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Heard Sri. Challa Dhanamjaya, learned Senior Counsel

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appearing for the Appellant/Accused No. 1, 2 and 4 in Criminal Appeal Nos. 431 of 2015 and 509 of 2016; Sri.Venkateswarlu Sanisetty, learned Counsel appearing for the Appellant/Accused No. 3 in Criminal Appeal Nos. 534 of 2015 and Sri. Soora Venkata Sainath, learned Additional Public Prosecutor, appearing for the State. As these three Criminal Appeals arose from one Sessions Case, they are disposed of together by this Common Order.

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Accused Nos. 1 to 4 in Sessions Case No. 45 of 2009 on

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the file of the XV Additional District and Sessions Judge, Nuzvid, are the Appellants herein. Originally, all the four Accused were tried for the offence punishable under Section

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302 read with 34 Indian Penal Code [‘ I.P.C. ’] for causing the death of one Manchineella Venkateswara Rao [‘ Deceased ’] in the early hours of 01.01.2008 at G.Konduru Village. By its Judgment, dated 21.042015, the learned Sessions Judge, convicted all the Accused for the offence punishable under Section 302 read with 34 of I.P.C. and sentenced each one of them to suffer imprisonment for life and to pay fine of Rs.1,000/- in default to undergo simple imprisonment for three months each. Assailing the said conviction and sentence imposed, the present Appeals are preferred.

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The facts, as culled from the evidence of the prosecution witnesses, are as under :

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i) PW1 is the brother of the deceased, while PW2 is wife of the deceased. PW3, PW4 and PW5 were examined as eye witnesses to the incident. Accused Nos. 1 to 4 are also residents of Velagaleru Village of G.Konduru Mandal.

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ii) On 01.01.2008 at about 4.00 A.M., PW1 along with the deceased went to Panchayat Office of their Village for purchase of cigarettes from the buddy shop of PW3. At that time, Accused Nos. 1 to 4 were present at the

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buddy shop of PW3. It is said that, PW1 and deceased went to greet Villagers on the eve of New Year. While they were at the buddy shop, Accused No. 1 is said to have blown Manikchand Gutka powder by tearing the packet. The powder fell on the face of the deceased. In response to the same, the deceased questioned as to who blew the powder on him. At that point of time, Accused No. 3 uttered to kill the deceased. On his utterance, Accused No. 1 picked up stout stick [Kattepedu] lying there and is said to have beat the deceased on the back side of head. On receiving the said blow, the deceased fell down at the buddy shop. On seeing PW4 and 5 and on hearing the cries raised by them, the Accused left the place.

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iii) At about 8.00 A.M., PW1 along with others went to the Police Station and presented a report, which came to be registered as a case in Crime No. 01 of 2008 for the offence punishable under Section 302 I.P.C. Ex.P1 is the report, while Ex.P15 is the First Information Report.

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iv) PW11 – Sub-Inspector of Police, who registered Ex.P15 [F.I.R.], took up further investigation and proceeded to

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the scene of offence. At the scene of offence, he noticed the dead body lying on the road. The head of the deceased was broken and brain matter was out. At the scene, he got prepared an observation report and also photographed the scene of offence, apart from preparing a rough sketch of the scene. Ex.P13 is the Rough Sketch of the scene and Ex.P3 is the Observation Report, while Ex.P2 are a set of photographs. Thereafter, he conducted inquest over the dead body in the presence of PW6 and others. Ex.P5 is the Inquest Report. During inquest, he examined PW1, PW3, PW4 and other family members and recorded their statements. After completing the inquest proceedings, the dead body was sent for post-mortem examination.

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v) PW10 – Civil Assistant Surgeon in Community Health Centre, conducted autopsy over the dead body and noticed external injuries on the body. According to him, the cause of death is due to head injury. Ex.P12 is the post-mortem examination.

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vi) On 02.01.2008, PW11 [Sub-Inspector of Police] proceeded to Velagaleru Village and examined other witnesses. The record also shows that on 14.02.2008 he arrested Accused No. 3 near Sai Baba Temple. Pursuant to the statement made by the Accused, M.O.1 to M.O.3 and M.O.6 and M.O.7. were seized.

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vii) PW12 – Circle Inspector of Police, took up investigation on 04.01.2008 and verified the investigation done. He is said to have arrested the Accused Nos. 1, 2 and 4 on 09.01.2008 and recorded their confessional statements in the presence of mediators. Accused No. 1 lead them to the outskirts of Kavuluru Village and from the bushes he brought out one carry bag containing pant and full hands shirt, which were worn by him at the time of incident.

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viii) PW13 – Inspector of Police, took up investigation from PW12 and verified the investigation done by his predecessor. After collecting all the necessary documents from RFS Lab, a charge-sheet came to be

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filed, which was taken on file as P.R.C. No. 59 of 2008 on the file of 1^st Metropolitan Magistrate, Vijayawada

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On appearance of the accused, copies of documents as required under Section 207 Cr.P.C., came to be furnished. Since the case is triable by Court of Sessions, the same was committed to Court of Sessions under Section 209 Cr.P.C. Basing on the material available on record, charge as referred to above came to be framed, read over and explained to the Accused, to which, the Accused pleaded not guilty and claimed to be tried.

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In support of its case, the prosecution examined PW1 to PW13 and got marked Ex.P1 to Ex.P17, beside marking M.Os.1 to M.O.9. After completion of prosecution evidence, the Accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses, to which they denied, but, however, no oral evidence was adduced in support of their plea except marking Ex.D1 and Ex.D2.

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Relying upon the evidence of PW1 to PW5, which according to the learned Sessions Judge, gets corroboration from the medical evidence, convicted all the four Accused and sentenced each of them to suffer imprisonment for life. It is against this conviction and sentence imposed, the present Appeals came to be filed.

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(i) Sri. Challa Dhanamjaya, learned Senior Counsel appearing for the Appellant/Accused No. 1, 2 and 4 mainly submits that, though, PW3 is projected as an eye witness to the incident, there are number of circumstances to indicate that he was not present at the scene. In other words, his argument appears to be that PW3 did not even open his buddy shop by the time of incident, as his own admissions shows that, he was selling liquor in his house till 11.00 P.M. on the previous day due to New Year and he normally opens buddy shop sometimes at about 6.00 A.M., sometimes at 8.00 A.M. and sometimes at 4.00 A.M.

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(ii) The learned Senior Counsel further submits that, the evidence of PW2 excludes the presence of PW3, while the evidence-in-chief of PW4 itself shows that by the time he

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reached the scene of offence, the Accused left the scene. In other words, the learned Senior Counsel would contend that, when none of the witnesses have seen the incident and the delay in registering the first information report, has been used to create a false case against the Accused. He further submits that, the prosecution has suppressed one set of statements recorded by the investigating agency and the same is fatal to the prosecution case.

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Sri.Venkateswarlu Sanisetty, learned Counsel appearing for the Appellant/Accused No. 3, adopts the arguments of Sri.Challa Dhanamjaya, learned Senior Counsel appearing for the Appellant/Accused No. 1, 2 and 4.

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(i) On the other hand, Sri. Soora Venkata Sainath, learned Special Assistant Public Prosecutor, appearing for the State, opposed the same contending that, there are no reasons to disbelieve the evidence of PW3, who is the eye witness to the incident. According to him, PW3 has no ‘motive’ to speak falsehood.

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(ii) The learned Additional Public Prosecutor would also submit that, there is no suppression of any statement, for the reason that the Investigating Officer only verified the investigation done by his predecessor and that he never recorded any statement. He further submits that, there is absolutely no delay in lodging the report and the report reaching the Court. He also took us through the medical evidence to show that the same corroborates the evidence of eye witnesses, more particularly, PW1 to PW3. Since, PW3 is an independent witness, he would contend that, the findings recorded by the learned Sessions Judge basing on the evidence of PW3 requires no interference.

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The point that arises for consideration is, whether the prosecution was able to bring home the guilt of the Accused beyond reasonable doubt for the offence punishable under Section 302 read with 34 I.P.C.?

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Coming to the first aspect, namely, whether there was any ‘motive’ for the Accused to kill the deceased; though, the Charge refers to an incident said to have taken place on 29.12.2007, namely, a verbal altercation between Accused

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No.1 and deceased, but, none of the witnesses, examined by the prosecution in the Court, speak about the same. All the witnesses including the Investigating Officer only refer to the incident, which took place on 01.01.2008.

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I. First Information Report.

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PW1, who claims to be an eye witness to the incident, set the law into motion by lodging a report before PW11 [SubInspector of Police]. In the report, given by him, which is placed on record as Ex.P1, it is stated that, on 01.01.2008 at about 4.00 A.M. when his elder brother [deceased] was at Velagaleru Hotel Centre saying New Year to the persons present there; Accused No. 1 and 3 quarrelled with his brother [deceased]. On coming to know about the same, he went to the Centre, where Accused No. 2 and 3 uttered to kill the deceased. Then, Accused No. 1 picked up a stick and beat on the head of the deceased, as a result of which, the deceased fell down. Then, Accused No. 2 took a stick and beat on the deceased. When, PW1, PW3, PW4 and one Prasad who were going on a Tractor tried to intervene, the Accused left the

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sticks at the scene and ran away. Hence, a report came to be lodged to take action.

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From a reading of the First Information Report, which was given at about 8.00 A.M. by PW1, it is stated that, the deceased alone went to the Centre to wish everyone and at that time an incident took place. Specific role with regard to the attack on the deceased is attributed to Accused No. 1 while the act of instigation is being attributed to Accused No.2 and 3. It is to be noted here that, in the first report the name of Accused No.4 is not mentioned. It is also to be noted here that Accused No.4 was known to PW1 and others and in-spite of the same, for the reasons best known, his name never reflected in the First Information Report. But, as stated by us earlier, there was a quarrel, pursuant to which Accused No. 1 beat the deceased with a stick on the instigation of Accused No. 2 and 3.

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II. Oral Evidence .

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Coming to the oral evidence, the version of PW1 is slightly different from Ex.P1. According to him, on the fateful day, he along with the deceased, who is his brother, went

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towards Gram Panchayat Office at 4.00 A.M., wishing the Villagers. The deceased went towards the buddy shop of PW3 for purchasing cigarettes. At that point of time, Accused No. 1 to 4, were present at the buddy shop. A quarrel ensued when Accused No. 1 blew Manikchand Gutka powder on the face of the deceased. It is said that, Accused No. 3 instigated to kill the deceased, on which Accused No. 1 gave a blow on the back side of head of the deceased with a stick, which was lying there. On receiving the said blow on the head, the deceased fell down at the buddy shop. Thereafter, on hearing cries of PW4 and PW5, the Accused left the scene.

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As stated earlier, the learned Senior Counsel mainly contended that, there is any amount of doubt with regard to PW1 being present at the time of offence or accompanying the deceased. He mainly relied upon the evidence of PW2 to establish the same.

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PW2 is none other than the wife of the deceased. According to her, on 01.01.2008, her husband went out to greet New Year to his friends. One hour after her husband [deceased] left the house; her neighbours came and informed

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that her husband was beaten to death. On coming to know the information, she along with her in-laws proceeded to Panchayat Office Junction and found the deceased lying in supine position. PW1 and others were present at the buddy shop of PW3. Her enquiries with PW1 and PW4 revealed that the deceased went to buddy shop for purchase of cigarettes where all the four Accused present there quarrelled with the deceased, which lead to the incident. PW2 in her evidence states that the attack by the Accused was because of previous enmity. She speaks about the deceased informing her about such enmity.

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Two things are required to be noted from the evidence of this witness, firstly she does not speak about PW1 accompanying the deceased to Gram Panchayat Office; secondly if there was any past incident or previous incident, wherein, Accused No. 1 and deceased quarrelled, PW1 would have mentioned the same in his evidence, which he has not done. Therefore, a doubt arises as to the existence of a prior incident.

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Be that at it may, as stated earlier, the veracity of the evidence of PW1 as sought to be tested through the evidence of PW2, as she failed to mention the presence of PW1 along with the deceased while they left the house. But, even assuming for the sake of argument that PW1 did not accompany the deceased on the morning of 01.01.2008 from his house, fact remains that he was present at the buddy shop, when PW2 along with others went to buddy shop on receiving the information about the incident and when enquired, PW2 informed about the manner in which the incident took place. Even if the evidence of PW1 is believed, it only establishes the involvement of Accused No. 1 in the commission of offence and creates a doubt about the involvement of Accused No. 2 and 3 in the commission of offence, for the reason that the testimony of PW1 is inconsistent with his version in the First Information Report.

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As stated by us earlier, in the first report given by PW1, he refers to instigation by Accused No. 2 and 3, while giving evidence in court; he attributes instigation to Accused No. 3 alone. However, this version has to be tested with version of PW3, who was examined as eye witness to the incident.

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At this stage, it would be appropriate to refer to the evidence of PW3, since the entire incident took place at his shop. According to him, on the fateful day at about 4.00 A.M. Accused No. 1 to 4 had an altercation with the deceased infront of his buddy shop, when the deceased came to purchase cigarettes. According to him, Accused No.1 threw Manikchand Gutka paper on the deceased and when the deceased questioned about the same, there was a verbal altercation between Accused No. 1, 2 and 3 on one side and deceased on the other side and, thereafter, Accused No. 1 brought a burnt stick and beat the deceased on head causing bleeding injury. It is to be noted here that, this witness dies not speak about any instigation by any of the Accused. On the other hand, his evidence only speaks about all the three accused having a verbal altercation and then Accused No. 1 beat the deceased with a burnt stick. This evidence is sought to be challenged on the ground that he was not present at the scene and that he never opened the buddy shop. We are not in agreement or accept the argument advanced by the learned Senior Counsel, with regard to PW3 being not present at the scene. It may be true that, he was selling liquor from his house till 11.00 P.M.

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on 31.12.2007, but, at the same time, the answers elicited in the cross-examination itself show that he opens his buddy shop sometimes at 6.00 A.M. in the morning, sometimes at 8.00 A.M. and sometimes at 4.00 A.M. When the above fact came to be elicited in the cross-examination of PW3, doubting his presence, at the scene, does not arise. It would be appropriate to extract the relevant portion in the crossexamination of PW3, which is as under:

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“It is not true to say that I have not opened my buddy shop at 4 A.M. on 01.01.2008 and that he has not taken place as stated by me between all the accused and the deceased at my shop. It is not true to say that my shop is usually opened at 9 A.M. in the morning time. Witness volunteers that he opens his buddy shop sometimes at 6 A.M. in the morning time, sometimes at 8 A.M. in the morning and sometimes at 4 A.M. in the early hours of the day.”

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Further, PW3 was cross-examined at length, but

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nothing useful came to be elicited to discredit his testimony. All the suggestions given with regard to the manner in which the incident took place were denied. At the same time, it is also to be noted that certain questions were put, which shows inconsistency in the defence of the Accused.

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PW4 was examined by the prosecution to speak about the incident. His evidence has to be brushed aside, since in his chief-evidence itself he categorically states that, by the time they went to scene of offence all the four Accused left the scene. Therefore, he could not have witnessed the incident.

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At this stage, the learned Senior Counsel further submits that, the evidence of PW4 also shows that, PW1, PW3 and others also proceeded along with PW4 to the scene, after they left the said place. But, a reading of the entire evidence of PW4, with the earliest statement show that after he reached the scene of offence, he notice PW1, PW3 and others at the scene. It does not mean all of them including PW3 went to the scene of offence after the incident. Even otherwise, his evidence toes in line with what PW3 has stated, namely, involvement of Accused No. 1 in beating the deceased on his head with Kattepedu, while others quarrelled with him.

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From the evidence of these four witnesses it stands established beyond doubt the involvement of Accused No. 1 in the attack on the deceased. The said evidence adduced by the

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Prosecution gets corroboration from the medical evidence as well.

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Sri. Challa Dhanamjaya, learned Senior Counsel appearing for the Appellant/Accused No. 1, 2 and 4, taking advantage of answers elicited in the cross-examination of PW10 – Sub-Inspector of Police, tried to contend that, there are two sets of statements and one set of statement recorded by the Sub-Inspector of Police has been suppressed. We are not in agreement with the same. The evidence on record shows that the Assistant Sub-Inspector of Police has examined the witnesses to verify the correctness of the investigation done earlier i.e., after registration of crime but he has not recorded the statement of witness.

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As held by us earlier, the prosecution failed to prove or failed to adduce evidence evidencing prior enmity or prior incident between both the parties. Though the prosecution tried to show that there was an incident or quarrel between Accused No. 1 and deceased, through the evidence of PW2, but, the same was not spoken to by PW1, who happens to be the brother of the deceased, or by any of the other

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prosecution witnesses. Even PW2 does not say as to when the prior incident took place. Therefore, it can be said that the prosecution failed to prove any prior incident, which prompted the Accused to attack the deceased on that day. But, all the four Accused were convicted by invoking Section 34 of I.P.C. In other words, the trial Court held that all the Accused shared common intention to do away with the Accused. But, in the facts of the case, can it be said that all the four Accused shared common intention?

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What requires to be noted here is that, on the fateful day, it was the deceased who went to the buddy shop of PW3 for purchase of cigarettes. By chance, Accused No. 1 to 4 were present at the shop. It is nobody’s case that, all the four Accused were aware about arrival of the deceased to the shop of PW3, at that relevant time on 01.01.2008. It is also to be noted here that, none of the Accused were armed with any weapon. The evidence of PW3 and even if the evidence of PW1 and PW4 is to be believed, it only shows that there was a verbal altercation between Accused No. 1 to 3 on one side and the deceased on the other side. None of the witnesses speak about the presence of Accused No. 4 or the involvement of the

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Accused No. 4 in the commission of offence. Hence, it cannot be said that there was any common intention to attack the deceased.

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As seen from the evidence, in the course of an altercation, which took place pursuant to Accused No. 1 blowing Manikchand Gutka powder, Accused No. 1 took up a stick lying there and beat on the head of the deceased. Though, prosecution tried to rope in Accused No. 2 and 3 by stating that they instigated Accused No. 1 to kill the deceased, but, the evidence of PW3 and the evidence of PW4 is silent with regard to instigation by Accused No. 2 and 3. On the other hand, it has been consistently stated by them that there was a quarrel between the Accused and deceased and, thereafter, Accused No. 1 attacked the deceased with the stick. In the absence of any common intention and taking into consideration the manner in which the offence took place, namely, that the incident being an outcome of a quarrel, that too when Accused No. 1 is said to have blown gutkha powder, the case in hand, in our view, would fall under Exception 4 of Section 300 I.P.C. Further, the evidence of PW10, the postmortem doctor speaks of two external injuries on the body of

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the deceased. One of which is on the head causing multiple fractures and second one is a bruise on the chest. As held by the Courts, it is not the number of injuries or the nature of weapon used at the incident that matters all the time but the manner in which the incident took place also has to be seen or taken note of while deciding the case.

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To invoke exception (4), the requirements that are to be fulfilled have been laid down by the Hon’ble Apex Court in

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Surinder Kumar vs. Union Territory of Chandigarh¹ , in which it is explained as under:-

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“7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he

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1 (1989) 2 SCC 217

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would be entitled to the benefit of this exception provided he has not acted cruelly…………..”

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Further in the case of Arumugam vs. State,

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Represented by Inspector of Police, Tamil Nadu² , in support of the proposition of law that under what circumstances exception (4) to Section 300 IPC can be invoked if death is caused, it has been explained as under:-

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“18. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender’s having taken 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 within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the ‘fight’ occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden

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2 (2008) 15 SCC 590

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quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression ‘undue advantage’ as used in the provision means ‘unfair advantage’.”

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31) Chhotey Lal v. State³ was a case where the accused is

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said to have caused a single sickle blow to the deceased without any premeditation and previous ill-will or animosity. The High Court took the view that the incident took place at the spur of moment, as a result of altercation, and the case would fall under Exception 4 of Section 300 IPC and therefore, the accused is liable for conviction under Section 304 I.P.C.

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In similar case, the Hon’ble Apex Court in Joseph v. State of Kerala⁴ held that, if an occurrence has taken place on a trivial matter resulting in quarrel and the accused inflicted two lathi blows on the head of the deceased which proved fatal, it cannot be said that the accused intended to cause such bodily injury which was sufficient in the ordinary course of nature to cause death. The accused can be attributed with knowledge that by inflicting such injury he

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3 1998 (1) ACR 771

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4 1995 SCC 165

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was likely to cause death and such an offence falls under Section 304 I.P.C. and not under Section 302 I.P.C.

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In view of the judgments referred to above and having regard to the manner in which the incident in question took place, we are of the opinion that the case of the appellant/accused falls squarely under Section 304 Part-I of IPC. Hence, the conviction and sentence imposed against the Appellant/Accused Nos. 2 to 4 for the offence punishable under Section 302 read with 34 I.P.C., in Sessions Case No.45 of 2009 on the file of the XV Additional District & Sessions Judge, Nuzvid, by Judgment, dated 21.04.2015, is set aside. The Appellants/Accused Nos. 2 to 4 are acquitted and they shall be set at liberty forthwith, if they are not required in any other case. The appeal against Appellants/Accused No.1 is allowed in part and he is convicted under Section 304 Part-I I.P.C. and the sentence of life imprisonment imposed on the Accused No.1 is hereby modified to simple imprisonment for a period of Ten years, confirming the fine imposed. The period of imprisonment undergone by the Accused No. 1 shall be given set off under Section 428 Cr.P.C.

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With the above modification, Criminal Appeal No. 431 of 2015 is allowed in part ; while Criminal Appeal No.534 of 2015 and Criminal Appeal No.509 of 2016 are allowed .

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