Dismissed

The State of Andhra Pradesh, v. Kamatham Manohar

Telangana HC7 Aug 2012CRLA/1132/2008

Case brief

AI extract

What is this about?

In a criminal appeal against the acquittal of A-2 and conviction of A-1 for grievous hurt, the High Court held that the prosecution failed to prove intention to kill. The Court dismissed the State's appeal, upholding Section 326 IPC conviction and A-2's acquittal.

What did the court decide?

The Criminal Appeal filed by the State is dismissed; conviction of A-1 for Section 326 IPC stands; A-2 remains acquitted.

The State of Andhra Pradesh, Vs Kamatham… — Murder and Culpable Homicide | Telangana HC (2012)

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

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CRIMINAL APPEAL No.1132 of 2008

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JUDGMENT: (per the Hon’ble Sri Justice P.Durga Prasad)

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This appeal at the instance of the State is directed against the acquittal of the accused in S.C.No.96 of 2004 by the VII Additional District and Sessions Judge (Fast Track Court), Madanapalle on 19.01.2005.

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The respondents herein were prosecuted for the offence under Section 302 read with 34 of the Indian Penal Code, 1860 (for short “IPC”).

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According to the prosecution, the deceased Kamatham Nagamma got three sons and a daughter i.e. Manohar (A-1), Rajamma (LW-3), Prabhakar (LW-1) and Muniraj (LW-2) and all of them are residing separately. About ten years back, K.Munaiah, husband of K.Nagamma died. A-1 got married to Kamatham Kanthamma, A-2 about 13 years back and they have no issues. The said Nagamma got about two acres of land and 50 cents of land has been distributed to each of her son and rest of 50 cents have been shared by herself and her daughter Rajamma. About 4 years back, Swarnalatha, the wife of Muniraj, has expired and Nagamma brought Swathi, aged about 9 years, and adopted her, for which both the accused got eye-sore as the said Nagamma may give her share of property to Swathi and accused used to quarrel with said Nagamma. The share of 25 cents of the land of deceased Nagamma was given on lease to Gutha Suresh stating that they have got right in the said land. Upon which PW.1 and Muniraj chastised both the accused. On 20.09.2003 at about 9.00 p.m. while she was sleeping along with her grand daughter-cum-adopted daughter Swathi, both the accused went to the said house, compelled her to give her share of

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property to them, for which the said Nagamma refused and both the accused rebelled against the deceased Nagamma and abused in filthy language and A-1 armed with stick, beat his mother mercilessly all over her body and his wife A-2 beat her with hands, kicked with legs and caused severe fractures on left knee below and the bone protruded and also fracture on left wrist above for which the said Nagamma cried loudly and Swathi woke up from sleep and informed to PW.1 and he came to the house and noticed both the accused abusing and the deceased sustaining severe injuries. PW.1 brought the doctor, PW.11, who rendered first aid and instructed PW.1 to take her to the hospital for specialized treatment but she refused. Later on 21.09.2003 at 4.30 p.m. Nagamma died due to injuries caused by both the accused. On the complaint by PW.1, the case in Cr.No.43 of 2003 under Section 302 of IPC was registered against the accused by PW.17 and held inquest over the dead body of the deceased and sent the dead body for post mortem examination and examined the witnesses. PW.18 took up the further investigation and arrested the accused on 25.09.2003 at 4.00 p.m. on Nanjampeta-Sodam road near Savaramvaripalle bus stop and recorded his confessional statement and seized the stick used by him in the commission of the offence and A1 was remanded to judicial custody and A2 was absconding. The doctor, who conducted autopsy over the dead body of the deceased, issued post mortem certificate, opined that the deceased died due to multiple injuries and with an injury to spleen, heamorrhage and shock. PW.18 after completion of the investigation, filed the charge sheet against the accused.

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The Sessions Judge has framed the charge under Section 302 of IPC against both the accused and they pleaded not guilty for the said charge.

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The prosecution in order to establish the said charge examined P.Ws.1 to 19 and got marked Exs.P-1 to P-23 and MOs.1 to 4. No oral or documentary evidence was adduced on behalf of the accused in

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defence.

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Taking into consideration of said oral and documentary evidence, the Sessions Judge found A-1 guilty for the offence under Section 326 of IPC and convicted and sentenced him to undergo rigorous imprisonment for three years and to pay fine of Rs.2,000/- in default to undergo simple imprisonment for three months and A-2 was found not guilty and she was acquitted for the charge framed against her.

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Having not satisfied with the conviction and sentence of A-1 and the acquittal of A-2, the State has filed the present appeal.

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The Additional Public Prosecutor has pleaded that PWs.1 and 6 are the eye witnesses to the incident and they have categorically stated about A-1 hitting the deceased indiscriminately with a stick and A-2 kicking her with legs and beating her with hands and the deceased died due to multiple injuries and the motive for the commission of the offence was also established from the evidence of PWs.1 to 4, as such the trial Court has erred in acquitting A-2 and convicting A-1 only for the offence under Section 326 of IPC and A-1 and A-2 ought to have been convicted for the offence under Section 302 of IPC.

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The respondents’ counsel, on the other hand, pleaded that the trial Court has rightly found A-2 not guilty and found A-1 guilty for the offence under Section 326 of IPC and against the said conviction and sentence passed against A-1, he has preferred the appeal before this Court in Criminal Appeal No.76 of 2005 and the said appeal was disposed of on 14.08.2006 confirming the conviction and reducing the sentence of rigorous imprisonment from three years to one year, as such the appeal filed by the State is not maintainable.

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According to the prosecution, as the deceased Nagamma has adopted Swathi, the daughter of Muniraj and as she is going to give her share of 25 cents of land to the said Swathi, they demanded for giving 25 cents of land to A-1 and both the accused attacked on the deceased

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Nagamma and A-1 hit her with a stick on her body indiscriminately and A-2 kicked her and beat her with hands and legs and caused the death of the deceased.

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The motive for the commission of the offence by the accused is that they suspected that the deceased may give 25 cents of land, which fell to her share, to Swathi, who is the daughter of Muniraj as they are also entitled for a share in the said property.

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PW.1, who is the son of the deceased, has stated that the accused used to quarrel with his mother regarding the landed property and in the cross-examination he admitted that they are owning two acres of land of wet land and it is their ancestral property and the said land stands in the name of his father and there is no partition of the family property.

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PW.2, who is another son of the deceased, has stated that a partition of two acres of ancestral property took place and his mother was allotted 25 cents of land and he was allotted 50 cents of land and 20 days prior to the date of incident he went to the house of his mother and as his mother requested him to give her share of land on lease, he gave it to Gutha Suresh on lease for cultivation. According to him, the accused bore grudge as the land was not given to him and they entertained a doubt that his mother may give the said land to his daughter Swathi. Apart from the above said evidence of PWs.1 and 2, there is no other evidence to establish that the deceased has got 25 cents of land out of their ancestral property. Therefore, the motive for the commission of the offence by the accused was not established by the prosecution.

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With regard to the commission of the offence, PW.6 is the sole eye witness, who was present at the time of incident in the house of the deceased and she has informed about the incident to PW.1, who came to the house after the occurrence of the incident. But according to him, he has seen the accused leaving the house. But in the cross-examination he admitted that within five minutes of the incident, PW.6 came to him

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and informed about the incident and Swathi has informed him that A2 beat his mother with stick on her left hand and A1 beat her with left leg and he also admitted that he has stated before the police that A2 beat her with hands and kicked her with legs. PWs.2, 3, 4 and 5 are not the eye witnesses to the incident, they only spoke about PW.6 living with the deceased in her house.

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PW.6 has stated that her natural mother is Swarnalatha and father is Muniraj and Nagamma is her paternal grand mother and her mother died about five years back. After death of her mother, she has been staying with her paternal grand mother Nagamma in Cheekelavaripalli and studied IV class in Government school at Cheekelavaripalli by staying in the house of her grand mother. A1 and A2 used to stay in the adjacent house. PW.1 stayed four houses away from their house. A1 and A2 beat her paternal grandmother and she died. When herself and her paternal grand mother were lying on a mat and her grand mother was telling stories, A1 and A2 entered into the house and beat her paternal grand mother. She was able to see A1 and A2 in the kerosene lamp and also identified by their voice. The other villagers PWs.7 to 10 have turned hostile to the prosecution.

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PW.11 is the doctor, who has give first aid to the deceased and according to him PW.1, the deceased, his mother, is unconscious state and he advised him to take super speciality hospital for treatment. The doctor, PW.16, who conducted autopsy over the dead body of the deceased, has found the following injuries:

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1) Wound of 6 x 4 cms over the middle of the left leg with open fracture of left tibia;

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2) Contusion of 10 cms diameter over left thigh bluish black in colour;

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3) Swelling and deformity of the left wrist with two wounds of size 1 cm. over the dorsum of left hand;

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4) Contusion of 10 cm x 1 cm over left intraxilary

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region;

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5) Bluish black of 5 cms diameter over the right knee.

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On internal examination, he found neck structures pale, hyoid and thyroid intact. Chest ribs on right side are intact. Left side 7^th , 8^th , 9^th , 10^th and 11^th ribs are fractured and he opined that the deceased would appear to have died of multiple injuries with injury to spleen, heamorrhage and shock and he admitted that the fractures of 7^th , 8^th and 9^th ribs can be caused with MO.4. The fracture on the left wrist of the deceased can also be caused with MO.4. When the individual was beaten with MO.4 on the ribs, there is a possibility of laceration of the spleen. The injuries shown in Ex.P-9 may be caused by MO.4 and in the cross-examination he denied the suggestion that the injuries are not possible if an individual falls on sharp edged stones. Therefore, from the evidence of PW.16, the prosecution could able to establish the injuries sustained by the deceased.

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According to the investigating officer, PW.18, he arrested the accused on 25.09.2003 at Savaramvaripalle situated at Nanjampet – Sodum road in the presence of PWs.13 and 15 and at the instance of the accused recovered MO.4 from the bushes under Maredu tree under cover of panchanama. PWs.13 and 15 supported the version of PW.18 with regard to recovery of MO.4 at the instance of the accused. Thus, the prosecution could able to establish the recovery of stick MO.4 at the instance of the accused. The trial Court has found that the accused has not attacked on vital parts of the deceased and it shows that he has no intention to kill the deceased. The way in which the accused attacked on the deceased with a stick clearly shows that he has no intention to cause the death of the deceased. Moreover all the injuries sustained by her not on a vital parts of the body but the death was caused due to the wound to the spleen and the accused may not have the knowledge by beating with a stick the injury will be caused to the spleen, which may lead to death. Therefore, as rightly observed by the trial Court, the deceased sustained injuries in the hands of A1 and the said injuries are grievous in nature

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and the trial Court has rightly convicted the accused for the offence under Section 326 of IPC, as the prosecution failed to establish the offence under Section 302 of IPC.

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With regard to A-2, it is the case of the prosecution that she only beat with the hands and kicked with the legs, but there is no evidence on which parts of the body of the deceased she has beat with hands and legs and there is no evidence to show that the acts of the accused caused injuries or led her to death. Therefore, the trial Court has rightly acquitted A2 for the offence under Section 302 of IPC. Thus, the findings recorded by the trial Court in acquitting A-2 and convicting A1 for the offence under Section 326 of IPC do not warrant any interference by this Court. Moreover, the conviction against A1 was confirmed by this Court in the Criminal Appeal No.76 of 2005. In the above circumstances, the appeal fails.

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In the result, the Criminal Appeal is dismissed.

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JUSTICE N.V.RAMANA

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______________________ JUSTICE P. DURGA PRASAD Date:07-08-2012 MR

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

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CRIMINAL APPEAL No.1132 of 2008

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Date:07-08-2012

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The State of Andhra Pradesh, v. Kamatham Manohar

Case brief

What is this about?

What did the court decide?

The State of Andhra Pradesh, v. Kamatham Manohar

Case brief

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