Partly allowed

Palivela Manikyam, v. The State of A.P.

Telangana HC4 Jul 2012CRLA/1011/2008

Case brief

AI extract

What is this about?

The High Court allowed a partial criminal appeal, modifying the appellant's conviction from murder (Section 302 IPC) to voluntarily causing grievous hurt with a dangerous weapon (Section 326 IPC) due to insufficient evidence linking the appellant specifically to the fatal injuries, while finding him responsible for non-fatal stabbing. The sentence was reduced from life imprisonment to six years ri

What did the court decide?

Conviction under Section 302 IPC modified to Section 326 IPC; sentence reduced to rigorous imprisonment for six years and fine of Rs. 100/.

Palivela Manikyam, Vs The State of A.P. — Murder and Culpable Homicide | Telangana HC (2012)

¶1

THE HON’BLE SRI JUSTICE N.V. RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD

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Criminal Appeal No. 1011 of 2008

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Judgement: (Per Sri. N.V. Ramana, J.)

¶4

This criminal appeal, by the appellant-accused No.1, is directed against the judgement dated 17.06.2008, passed by the VI Additional Sessions Judge (FAC) VIII Additional Sessions Judge (FTC), East Godavari, Rajahmundry, in S.C. No. 359 of 2005, convicting the appellant-accused for the offence under Section 302 IPC and sentencing him to undergo imprisonment for life and to pay fine of Rs.100/- and in default to suffer simple imprisonment for seven days.

¶5

Briefly stated, the case of the prosecution, as disclosed by the charge sheet filed by the police, is that there are clashes between Dasu and his associates on one hand and accused on the other hand, and cases were also registered in P.T.C. Nos. 86 and 87 of 2004 vide S.T.C. No.35 of 2004 on 13.05.2004, A1 to A6 with the help of A7 and A8 hatched a plan to finish Kakara Dasu.

¶6

On the night of 29.06.2004, P.W.1 went to Siripuram Center for purchasing curd and while he was returning after purchasing curd, the deceased Dasu joined him on the way, and while they were walking towards the house of P.W.1 and when they reached near the house of A1, A5 and A6 threw chilly powder on the face of deceased and P.W.1. Immediately, thereafter, A1 and A3 hacked Dasu with knives on his head, neck and shoulder. As a result, the deceased collapsed in a pool of blood and died on the spot. A1 to A4, A7 and A8 caused injuries to the deceased and P.W.1. A2 hacked P.W.1 with knife on his right hand and neck. P.Ws. 2 to 5 and 8 witnessed the incident.

¶7

P.W.1 reported the crime to the police. The Inspector of Police investigated the crime by observing the scene of offence and holding inquest over the dead body of the deceased and arresting the accused etc., in the presence of mediators. The Doctor conducted the postmortem examination over the dead body of the deceased. The Investigating Officer examined the witnesses and seized the crime weapons from A1 to A3 and chilly powder at the instance of A5 and A6.

¶8

The learned Sessions Judge has framed charges under Sections 147 and 148 IPC against A1 to A8, under Section 302 IPC against A1 and A2, under Section 302 r/w 149 IPC against A3 to A8 and under Section 307 IPC against A1 to A4, A7 and A8. The accused pleaded not guilty for the said charge and claimed to be tried.

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The prosecution, in order to establish the said charges, examined P.Ws.1 to 15 and got marked Exs.P1 to P14 and M.Os.1 to 12. On behalf of the defence, neither any witness was examined nor any documentary evidence marked.

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The learned Sessions Judge upon appraisal of the evidence on record, found the appellant-accused guilty of the offence punishable only under Section 302 IPC, convicted and sentenced him to undergo imprisonment for life and to pay fine of Rs.100/-, and in default to undergo simple imprisonment for seven days, while he found A2 to A4 guilty of the offence punishable under Section 324 IPC, convicted and sentenced them to suffer simple imprisonment for three months each, and acquitted the other accused of the charges framed against them.

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Questioning the said conviction and sentence, the appellant, who is accused No.1, filed this criminal appeal.

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Heard the learned counsel for the appellant and the learned Public Prosecutor for the State.

¶13

Now the point that arises for consideration in this criminal appeal is:

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Whether the prosecution could establish the charge under Section 302 IPC against the accused beyond all reasonable doubt?

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P.W.1 is the injured, who gave Ex.P1, P.W.2 is the wife of the deceased, P.W.3 is the mother of the deceased, P.W.4 is the sister of the deceased, P.W.5 is the friend of the deceased, P.W.6 is the photographer, P.W.7, who is VAO, is mediator to Ex.P4-inquest report, P.W.8 is the brother-in-law of P.W.1, P.W.9 is mediator to Ex.P8, P.W.10 is mediator to Ex.P9, P.Ws. 11 and 12 are persons who settled the dispute between accused No.1 and P.W.10, P.W.13 is the Civil Assistant Surgeon, who conducted autopsy over the dead body of the deceased treated P.W.1, P.W.14 is the S.I. of Police, who registered Ex.P12-FIR and P.W.15 is the Circle Inspector of Police, who conducted investigation.

¶16

P.W.1 is a resident of Siripuram village. He gave report Ex.P1report to the police. However, he turned hostile and did not support the case of the prosecution. He denied the suggestion that he stated before the police as in Ex.P1 and that he gave the report to police reporting the overt acts and that he was deposing falsehood to help the accused.

¶17

P.W.2 is the wife of the deceased. She stated that she does not know who killed her husband. She denied the suggestion that she stated before the police as in Ex.P2. She also turned hostile.

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P.W.3 is the mother of the deceased and mother-in-law of P.W.2. She stated that P.W.1, L.W.4 and her deceased son are friends. That they meet in the evening at community hall. That accused Nos. 5 and 7 poured chilly powder on the deceased and that accused No.1 hacked the deceased on his neck and that accused

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Nos. 2, 3, 4, 7 and 8 beat him with sticks and that his son died on the spot. At that time, her daughter was present with her. That P.W.2 was also present. That she can identify the knives. M.O.1 is the long knife used by accused No.1, M.O.2 is the small knife used by accused No.2 and M.Os. 3 to 5 are the sticks. That L.W.6 took P.W.1 to the hospital. She stated that the accused killed the deceased due to land disputes. In her cross-examination, she stated that the community hall is situated adjacent to Sripuram centre and that the house of P.W.1 is situated near the community hall. The community hall is not visible from their house. Their house is at a distance of about one mile, while the house of accused No.1 is at a distance of about 100 yards from the community hall on the gravel road junction, which runs from west to east. The house of accused No.1 is also not visible from their house. On hearing that her son was beaten by somebody, herself, P.W.2 and her daughter went to the community hall and found her son lying dead with injuries. She further stated that she does not know whether her son was having disputes with the accused and that she heard about the disputes from others.

¶20

P.W.4 is the sister of the deceased. She stated that she knows all the accused. P.Ws. 1 and L.W.5 are friends of the deceased. On 29.06.2004, at about 11.00 pm, herself, P.W.3 and P.W.2 went in search of the deceased. That accused Nos. 5 and 6 poured chilly power on the deceased, then accused No.1 hacked the deceased, accused No.2 hacked P.W.1, accused Nos. 3, 4, 7 and 8 beat the deceased with sticks. That she saw the incident from a distance of ten feet. That when they went there, the deceased died and P.W.1, who sustained injuries, was shifted to hospital by L.W.6. In her crossexamination, she stated that immediately after the occurrence, they telephoned to Yeleswaram police and the police reached the spot

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within one hour. She further stated that immediately after the deceased left the house, they followed him.

¶22

P.W.5 is the friend of P.W.1 and the deceased. He stated that accused No.1 was cultivating the land of one Alla Kanaka Rao. When disputes arose between them, Alla Kanaka Rao gave the land to him and the deceased. Therefore, accused No.1 bore grudge. That on 29.06.2004, at about 11.00 pm, he heard the cries of P.W.1, P.W.3 and P.W.4 and found the deceased in a pool of blood. That P.W.1 was shifted to hospital by his brother-n-law. However, in his crossexamination, he admitted that there is no document to show that Alla Kanaka Rao, had leased the land to them.

¶23

P.W.6 is the photographer. He stated that at the request of the police he took the photographs of the deceased and that Ex.P3 is the bunch of photographs and Ex.P.4 is the bunch of negatives of Ex.P3photographs.

¶24

P.W.7 is the Village Administrative Officer of Siripuram village. He is mediator to Exs.P4 to P6, namely inquest report, scene of observation report and arrest and confessional statement of accused Nos. 1, 2, 3, 5 and 6. He denied the suggestion that Exs.P4 to P6 were prepared by him in the police station to the dictation of the police.

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P.W.8 is a resident of Siripuram village. He is the brother-in-law of P.W.1. He turned hostile by stating that he does not know anything about the case.

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P.W.9 is the mediator for the arrest of Accused Nos. 4, 7 and 8 under Ex.P8. He stated that he drafted Ex.P8. That the police arrested three persons and that he does not remember those persons. He denied the suggestion that Ex.P8 was prepared in the police station and that there is an interpolation in the report that a weapon seized

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from accused No.7 was having bloodstains. He denied the suggestion Ex.P8 was fabricated in the police station and that no arrest or seizure of weapons was made.

¶28

P.W.10 is a resident of Jagapathi Nagar. He stated that he had given his land on lease to accused No.1 for one year. The payment of share amount was given to accused No.1 and the matter was placed before L.W.15 and thereafter, the matter was settled between himself and accused No.1. He stated that later he did not give the land to anybody. He was declared hostile by the prosecution.

¶29

P.W.11 is a resident of Siripuram village. He stated that accused No.1 informed him against P.W.10 regarding payment of cist and that he settled the dispute. Subsequently, they approached the police, and the amount was settled in the police station. He stated that he does not know to whom the land was leased subsequently and that he does not know the details of the case.

¶30

P.W.12 worked as Sarpanch for Geddanapalli. He stated that he knows accused No.1 and that accused No.1 cultivated the land of P.W.10. That himself and P.W.11 settled the dispute between accused No.1 and P.W.10. Later the matter was settled in the police station and that he does not know to whom the land was given subsequently. That he does not know the details of the case.

¶31

P.W.13 is the Civil Assistant Surgeon. He stated that he conducted autopsy over the dead body of the deceased, and noted the external and internal injuries and issued Ex.P10-post mortem report. He opined that the cause of death of the deceased to the best of his knowledge and belief is chop wound, other incised cut injuries cause spinal column injury and the head injury induces respiratory arrest, haemorrhage and shock and that the said injuries would be caused by M.Os. 1 to 5.

¶32

P.W.14 is the S.I. of Police, Gandepalle. He stated that on the date of incident, on receiving phone call, he went to the scene of offence and found a dead body of a male person and injured. He informed the same to the C.I. of Police and shifted the injured to Prathipadu Government Hospital and recorded his statement. Thereafter, he registered the same as Crime No. 48/2004 under Sections 302 and 307 read with Section 34 IPC and that Ex.P12 is the FIR. Thereafter, the C.I. of Police took up further investigation. He denied the suggestion that he did not receive phone call that unidentified persons committed the offence on the night of the incident and that the FIR is fabricated and that the statement of P.W.1 is substituted.

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P.W.15 is the Circle Inspector of Police, who investigated the case. He stated that on receipt of information from P.W.14, he visited the scene of offence and from there to the Government Hospital. He received Ex.P12 from P.W.1, examined him and recorded his statement. From there, he again proceded to the scene of offence, secured the presence of P.W.7 and another, and in their presence, examine scene of offence and prepared Ex.P5-observation report. He also prepared Ex.P13-rought sketch of the scene of offence. He seized M.Os. 9, 11 and 12, namely blood stained earth and controlled earth. He got the scene of offence photographed by P.W.6. That he found injuries on the dead body of the deceased. After holding inquest over the dead body of the deceased in the presence of mediators, he examined P.Ws. 2 to 5 and recorded their statements. That he arrested accused Nos. 1 to 3 and 5 and 6 on 05.07.2004, and on interrogation, they confessed to the commission of crime in the presence of mediators and that accused No. 1 produced M.O.2-knife and accused No.2 produced M.O.1-knife and that they observed blood

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stained clothes, namely while colour banian and while colour jeans pant of accused No.2 and that accused No.3 produced swing stick, and that at the instance of accused Nos. 5 and 6, they seized chilli power tin under Ex.P6-mazahar. Thereafter, on 15.10.2004, he arrested accused Nos. 4, 7 and 8 and recorded their confessional statement in the presence of P.W.9 and another. That at their instance, he seized M.Os. 3 to 5 and drafted Ex.P8-mediators report. That he sent the M.Os. to RFSL, Vijayawada, and that Ex.P14 is the RFSL report. That after receiving Ex.P10-post mortem report, and after examining P.Ws.10, 11 and 12, he filed the charge sheet.

¶35

According to the prosecution, the motive for the accused to cause the death of the deceased is the land dispute between them. P.W.3, the mother of the deceased stated that she has no knowledge that there are land disputes between the accused and the deceased. P.W.4 stated that there are land disputes between the accused. Though P.W.5, the friend of the deceased, also supported that there are land disputes between stating that himself and deceased was cultivating the land of one Alla Kanaka Rao, and that prior to them, accused No.1 cultivated the same, the fact remains, he admitted that there is no document to show that Alla Kanaka Rao had leased the land to them. In fact, Alla Kanaka Rao, who was examined by the prosecution of P.W.10, did not support the case of the prosecution that there were disputes between the accused and the deceased with regard to cultivation of his land. He merely spoke about the dispute that arose between him and accused No.1 with regard to the land leased to him, which was settled by P.Ws. 11 and 12. Thus it is evident that the prosecution could not prove motive on the part of the accused to kill the deceased.

¶36

The prosecution examined P.Ws. 1 to 4 as eye-witnesses to the

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incident. P.W.1 who gave report Ex.P1 and P.W.2, who is the wife of the deceased turned hostile. Though P.W.3, the mother of the deceased was cited as an eye-witness to the incident, but in her crossexamination, she stated that on hearing that her son was beaten by somebody, she along with P.W.2 and P.W.4 went to the community hall and found the deceased lying dead. Thus from this evidence of P.W.3, it is evident that she did not witness the incident. Therefore, the only eye-witness to the incident left is P.W.4, who is the sister of the deceased. P.W.4 stated that she knows all the accused that at about 11.00 pm, herself, P.Ws. 2 and 3 went in search of the deceased, and that she saw accused Nos. 5 and 6 threw chilly power on the deceased, accused Nos. 1 hacked the deceased, accused No.2 hacked P.W.1 and that accused Nos. 3, 4, 7 and 8 beat the deceased with sticks. Though P.W.4 stated that she saw accused No.2 hacking P.W.1, the fact remains, P.W.1 did not support the case of the prosecution and turned hostile. Further, P.W.4 only stated that accused No.1 hacked the deceased. She did not specify the part of the body of the deceased where accused No.1 had hacked the deceased. P.W.13-Civil Assistant Surgeon, who conducted autopsy over the dead body of the deceased and issued Ex.P10, found the following eight external injuries:

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1. A incised cut injury present over the left side of neck 2 inches below the left ear to the front of neck, obliqual knife size 2½ inches x 2 inches x 1 inch. Edges are clear. Edges are averted. Clots are present in the wound gap. Wound is clean.

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2. A large chop wound present on the back of the neck extending from ½ centimetre below the left ear passes horizontal hair line upto right side of occipital part of head. Slightly obliqual knife 7½ inches x 1½ inches x 3 inches in size. Edges are clean cut. Wound is clear. Edges are averted. Blood clots are filled in the wound gap.

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3. A vertical lacerated injury on left side of parietal part of head 3 ½ inches x 2 cms in size. Skull fractured. Fragments are seen through the wound gap. Edges are irregular. Wound is clear. Wound is filled with clots.

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4. An incised cut injury present on left supra scapular area crosses the spinal column and end at 1 inch apart from the right side spinal column. 4 inches x 1 inch x 2 inches in size. Edges are clean cut and averted. Wound is clean

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and filled with blood clots.

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5. Three abrasion injuries are present on spinal column. 3 inches x ½ cm size vertical in line dark brown in colour.

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6. 2 abrasion injuries on left infrascapular area and scapular area 2½ inches x ½ cm size. Vertical in line, dark brown in colour.

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7. An abrasion injury on lubal spinal region vertical in line 2 ½ inches x ½ cm size.

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8. A laceration present on left side occipital part of hear. 3 inches x 2 ½ cm size scalp deep. Bleeding marks present. Edges are irregular.

¶47

P.W.13 having noted the above external injuries on the dead body of the deceased opined the cause of death of the deceased to the best of his knowledge and belief is chop wound and that the other incised cut injuries cause spinal column injury and the head injury induces respiratory arrest, shock and haemorrhage, and that they could be caused by M.Os. 1 to 5. Thus, there is possibility of the deceased dying due to cumulative effect of the injuries sustained by him.

¶48

P.W.4 has stated that accused No.1 hacked the deceased, accused Nos. 3, 4, 7 and 8 beat the deceased with sticks. The learned Sessions Judge convicted accused Nos. 3 and 4 under Section 324 I.P.C. for causing injuries to the deceased. Thus the said injuries found by the Doctor, on the deceased, are caused by accused Nos. 1, 3 and 4. As accused Nos. 3 and 4 have not questioned their conviction of the offence under Section 324 I.P.C., it must be presumed that they admitted causing of the injuries to the deceased. Since P.W.4 did not specify on which part of the body of the deceased accused No.1 has hacked, it cannot be said that the injuries caused by accused No.1 led the death of the deceased. Therefore, the prosecution could not establish the charge under Section 302 I.P.C. In view of the evidence of P.W.4 that accused No.1 had hacked the deceased and as the weapon M.O.2-knife with blood stains was seized at the instance of accused No.1, the grievous injuries found on the deceased were caused by accused No.1 alone because accused

¶49

Nos. 3 and 4 are said to have used stick for beating. Thus the prosecution could establish the offence punishable under Section 326 I.P.C. for voluntarily causing grievous hurt to the deceased by using dangerous weapon. Hence, the conviction of the appellant-accused No.1 for the offence under Section 302 I.P.C., is modified to that of one under Section 326 I.P.C. and he is sentenced to undergo rigorous imprisonment for six years and to pay fine of Rs.100/- in default to undergo simple imprisonment for seven days.

¶50

In the result, the criminal appeal is partly allowed. The conviction and sentence passed in S.C. No. 359 of 2005 on 17.06.2008 by the VI Additional Sessions Judge (FAC) VIII Additional Sessions Judge (FTC), East Godavari District, Rajahmundry, against the appellant-accused No.1, for the offence under Section 302 IPC, is modified to that of one punishable under Section 326 IPC and is sentenced to suffer rigorous imprisonment for a period of six years and pay a fine of Rs.100/-, in default to suffer imprisonment for seven days.

¶51

________________ N.V. RAMANA, J.

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_____________________ P. DURGA PRASAD, J.

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Dated: 04.08.2012 KSR

Palivela Manikyam, v. The State of A.P.

Case brief

What is this about?

What did the court decide?

Palivela Manikyam, v. The State of A.P.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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