Partly allowed

Kukkamudi Johnson, v. The State of Andhra Pradesh

Telangana HC3 Jul 2012CRLA/987/2008

Case brief

AI extract

What is this about?

This Court allowed an appeal against a life imprisonment sentence for murder arising from a domestic dispute involving the accused finding his wife with a paramour. The Court reduced the conviction from murder to culpable homicide not amounting to murder due to sudden provocation.

What did the court decide?

Conviction under Section 302 IPC reduced to Section 304 Part-II IPC; life sentence reduced to eight years rigorous imprisonment; fine confirmed.

Kukkamudi Johnson, Vs The State of Andhra… — 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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Crl.A.No.987 of 2008

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

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This appeal is directed against the conviction and sentence passed in S.C.No.220 of 2006 by the Sessions Judge, Mahila Court, Vijayawada on 26.02.2008.

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The appellant herein is the sole accused and he was prosecuted for the offence under Section 302 IPC.

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According to the prosecution the deceased Kummamudi Bharathi is the wife of the accused and she is having illicit contact with a lorry broker by name Yohan (P.W.7) since some time. The accused knowing the same, warned the deceased not to allow him to his house, but the deceased did not change her attitude and P.W.7 was frequently visiting the house of the deceased in the absence of the accused. On 07.09.2004 at about 03.00 p.m. P.W.7 visited the house of the deceased in the absence of the accused, while the deceased and P.W.7 were on the cot in the house, the accused came to his house and found them in the room by keeping the doors closed without latching. The accused pulled P.W.7 and manhandled him. Out of fear, P.W.7 ran away from the scene. Then the accused picked up a chutney pounder and hit the deceased on her shoulders, knees, ankles and head. P.Ws.3, 4 and another heard the alarm from the house of the accused and rushed to the scene of offence and found the accused beating his wife and they tried to prevent the accused, but the accused threatened them by saying that it was their family affair. However P.W.3 pulled the chutney pounder from the accused, thereafter the accused fled away from the scene of offence. On 07.09.2004 at about 15.30 hours, P.W.11 has received a telephone call from a stranger about the accused beating his wife in his house

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and he deputed P.W.10, Home Guard, in Rakshak Mobile and he visited the scene of offence and shifted the deceased to the Government General Hospital and admitted her for treatment. Thereafter, P.W.11 rushed to the Government General Hospital and recorded the statement of the deceased and registered the case in Crime No.247 of 2004 under Section 324 IPC and took up the investigation. He also recorded the statement of the deceased under Section 161 Cr.P.C. at 17.00 hours. On the same day at 22.00 hours he received the death intimation from Government General Hospital and altered the section of Law from Section 324 IPC to Section 302 IPC. Thereafter, P.W.12 took up the investigation, visited the scene of offence, conducted the scene of offence panchanama, held inquest over the dead body of the deceased and sent the dead body for postmortem examination. Doctor, P.W.8, who conducted the autopsy over the dead body of the deceased opined that the death was due to head injury. On 11.09.2004 P.W.12 arrested the accused and sent him to judicial custody and forwarded the material objects to R.F.S.L. and on receipt of the report, he has filed the charge sheet against the accused.

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The learned Sessions Judge has framed the charge under Section 302 IPC against the accused and he pleaded not guilty for the said charge framed against him.

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In order to establish the said charge, the prosecution examined P.Ws.1 to 12 and got marked Exs.P.1 to P.15 and M.Os.1 to 6. No oral or documentary evidence was adduced on behalf of the accused.

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The learned Sessions Judge by taking into consideration of the said oral and documentary evidence found the accused guilty for the offence under Section 302 IPC and convicted and sentenced him to undergo imprisonment for life and also to pay fine of Rs.500/- in default to undergo simple imprisonment for two months.

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Aggrieved by the said conviction and sentence, the present appeal is filed by the accused.

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Now, the point that arises for consideration is:

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

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P O I N T:

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The counsel appearing for the appellant has pleaded that P.Ws.1 and 2 i.e. son and daughter of the accused and deceased are not the eyewitnesses to the incident and they only found the injuries on the deceased and the dying declaration recorded by P.W.11 and the statement of the deceased recorded under Section 161 Cr.P.C. do not disclose that the accused has intention to cause the death of the deceased and it is due to sudden provocation the accused hit the deceased on her head.

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The Additional Public Prosecutor on the other hand has pleaded that from the evidence of P.Ws.1 to 4 the prosecution could able to establish that the accused has caused the injury to the deceased on her head and the same was supported by the evidence of doctor, P.W.8 and the said evidence was corroborated by the statement recorded by P.W.11 under Ex.P.8 and

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the 161 Cr.P.C. statement of the deceased under Ex.P.10 and the trial Court has rightly convicted the accused for the offence under Section 302 IPC and the said finding does not warrant any interference by this Court in the appeal.

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According to the prosecution the deceased was having illicit intimacy with P.W.7 and in spite of the warning given by the accused she continued the said illicit intimacy. On 07.09.2004 the deceased and P.W.7 were found in the house of the accused in a compromising position when the accused entered into the house, and on seeing the

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same, the accused manhandled P.W.7 and he went away from the scene. Then the accused picked up the chutney pounder and hit the deceased on her head, shoulders, knees and ankles. Thereafter, he ran away from the scene of offence.

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P.W.1, son of the deceased, is an eyewitness to the incident. According to him on 07.09.2004 his mother died. On that day P.W.7 came to their house at about 03.00 p.m. in the evening. Due to Pushakara Holidays he was in their house. His younger sister and his mother were also in their house. P.W.7 came and enquired them about their father and he replied that their father was in Singnagar, then P.W.7 went inside of their house, at that time, himself, his younger brother and younger sister came out side for playing and within 15 minutes they heard the cries of their mother and then they went inside of their house, at that time P.W.7 was coming out of their house and they found that their father beating their mother inside of their house with pestle. Out of fear they came out of the house, then the neighbours P.Ws.3, 4 and another came to their house and P.W.3 snatched away the pestle from the hands of their father and their father came out from their house. In the meantime Rakshak police Jeep came there and took their mother was taken to Government Hospital. His mother sustained injuries on her head, on both her shoulders and on her neck. He went to the hospital along with his mother and he telephoned to his maternal grandmother and she came later. Along with his grandmother, his two uncles also came there. In the crossexamination, he admitted that in the year 2000, Pothana Satyam used to come to their house and he is not aware whether his father used to quarrel with his mother as he did not like the relations between his mother and said Satyam and when once his father found his mother and Satyam together in their house, a galata was taken place in the presence of his maternal grand mother. He further admitted that he has stated before the police that during the absence of his father, P.W.7 used to come to their house and used to talk with his mother and the

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accused has come to know the same asked the deceased several times not to talk with P.W.7.

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P.W.2, who is the sister of P.W.1 and daughter of deceased and accused, has supported the version of P.W.1 with regard to their hearing the cries of their mother and went inside the house and found that her father beating her mother with pestle and her mother was lying down in a pool of blood. She has stated that on the date of incident P.W.7 came to their house and enquired about their father and when she stated that their father was not present in the house, he went away. But in the cross-examination she admitted that the accused used to admonish the deceased as P.W.7 was coming to their house, even then the P.W.7 used to come to their house and her mother used to talk with him and on 07.09.2004 P.W.7 came to their house in the absence of the accused. She further admitted that when her father came to their house, the doors were closed. Therefore, both the witnesses, P.Ws.1 and 2 have witnessed the accused beating the deceased with chutney pounder.

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P.Ws.3 to 5 are the circumstantial witnesses and they stated that they came to the spot after hearing the cries of the children of the accused and found the deceased lying in a pool of blood and the accused was holding pestle in his hands. According to them, when they asked the accused as to what had happened, he stated that it is their family dispute and asked them to go away, then they snatched away the pestle from his hands. Therefore circumstantial evidence also clearly establishes that the deceased found with injuries and lying in a pool of blood and the accused was standing with pestle in his hand and the same is supporting the evidence of P.Ws.1 and 2.

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P.W.7, who is said to be the paramour of the deceased, has denied about his relationship with the deceased, but he admitted that on 07.09.2004 between 02.00 and 03.00 p.m. he went to the house of the accused and asked the deceased about the accused, then she

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stated that the accused was not present and asked him to sit and he sat in their house, she gave a glass of water to him; himself and the deceased were talking in their house, half-an-hour later, the accused came there and abused him and beat him and asked him as to why he came at that time and pushed him out. Then he went away and on the same day at about 06.00 or 07.00 p.m. he came to know about the death of the deceased. Therefore, P.W.7 even though denied about the illicit intimacy between him and deceased, admitted his presence on that day at 03.00 p.m. in the house of the accused and talking with the deceased and the accused coming to the house and abusing him. Thus, from the above it is evident that the accused has seen both the deceased and P.W.7 in his house in his absence.

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According to P.Ws.1 and 2, children of the accused and deceased, they have seen the accused beating the deceased with pestle on her head, shoulders and knees. Apart from the above said oral evidence the prosecution relied upon the statement of the deceased recorded by P.W.11, A.S.I. P.W.11, A.S.I, has received telephonic information on 07.09.2004 at about 3.30 p.m. about the woman was beaten by her husband with a pestle in Katikalavariveedhi and she was in serious condition and then he instructed P.W.10, Home guard, to go there in Rakshakvan and shift the injured woman to Government Hospital. P.W.10 also supported the version of P.W.11 with regard to his going to the house of the deceased and shifting the deceased to the hospital.

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P.W.11 recorded the statement of the deceased after admitting her in the hospital between 15.00 hours to 16.30 hours and it is marked as Ex.P.8, basing on which he has issued the FIR and took up the investigation and again visited the hospital and recorded the detailed statement of the deceased under Section 161 Cr.P.C, which is marked as Ex.P.10. In both the Exs.P.8 and P.10, she has stated that she developed illicit intimacy with P.W.7 and used to have sexual

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contact with him now and then and that several times her husband warned her to discontinue the same. Yet she continued the same. On 07.09.204 when her husband went to Mutton shop, at 03.00 p.m., P.W.7 came to their house and she closed the doors and later both laid on the cot, then her husband came by opening the doors with force and beat P.W.7, who was on her, and P.W.7 fled away. Her husband took the chutney pounder and beat her on her two knees, right shoulder and on her head and ran way. Both Exs.P.8 and P.10 are consistent with regard to the accused finding both the deceased and P.W.7 on a cot by closing the doors and when the accused came there, P.W.7 ran away and the accused took the chutney pounder and hit the deceased on her hands, legs, on right side shoulder and on her head. The said statements Exs.P.8 and P.10 are the dying declarations of the deceased and the said dying declarations are corroborating with the oral evidence of

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P.Ws.1 to 5. Thus, from the above evidence it is established that the accused has seen the deceased and P.W.7 in compromising position in his house while the doors are closed, then he got angry and abused P.W.7, on that P.W.7 ran away, then the accused hit the deceased with a chutney pounder on her head, knees and shoulders.

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The Doctor P.W.8, who conducted autopsy over the dead body of the deceased found 9 injuries, they are on the temparo parital region, on both shoulders and on both knees. According to him, the cause of death was due to head injury. Thus, the deceased died due to the injuries caused by the accused. The trial Court has found the accused guilty for the offence under Section 302 IPC. In view of the above said evidence, it is evident that the accused on seeing his wife with P.W.7 on a cot in a closed room got annoyed and hit the deceased with a chutney pounder, due to which she sustained injuries and died in the hospital subsequently. Thus, from the above it is evident that the accused has no intention to cause the death of the deceased, but due to sudden provocation caused by the deceased having found her in

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the company of P.W.7, hit her with a chutney pounder. Thus, the said act of the accused falls under Section 304 Part-II IPC but not under Section 302 IPC. Thus, the accused is liable for punishment under Section 304 Part-II IPC.

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In the result, the appeal is partly allowed. The conviction and sentence passed in S.C.No.220 of 2006 by the Sessions Judge, Mahila Court, Vijayawada on 26.02.2008 against the accused for the offence under Section 302 IPC is modified to that of Section 304 Part-II IPC and the sentence of imprisonment for life is modified to that of rigorous imprisonment for a period of 8 years and the fine imposed by the trial Court is hereby confirmed.

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_______________________ JUSTICE N.V.RAMANA

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_____________________________ JUSTICE P. DURGA PRASAD Date:03-07-2012 Ksp

Kukkamudi Johnson, v. The State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

Kukkamudi Johnson, v. The State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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Case details

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