Partly allowed

Banka Palankaiah v. The State of Andhra Pradesh

Telangana HC25 Feb 2014CRLA/1034/2009

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal, holding that the appellant's sudden act in heat of passion fell under Exception 4 to Section 300 IPC. The conviction under murder was downgraded to culpable homicide not amounting to murder, while the Section 324 conviction was upheld.

What did the court decide?

Conviction for murder under Section 302 IPC set aside; convicted of Section 304 Part II IPC with 7 years rigorous imprisonment; confirmed conviction under Section 324 IPC.

Banka Palankaiah Vs The State of Andhra Pradesh — Murder and Culpable Homicide | Telangana HC (2014)

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HON'BLE SRI JUSTICE K.C.BHANU AND

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HON'BLE SMT JUSTICE ANIS CRIMINAL APPEAL No.1034 OF 2009

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J U D G M E N T: (per Hon’ble Smt Justice Anis)

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This Criminal Appeal is filed by the appellant/accused, under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C."), against the Judgment, dated 26.08.2009 in Sessions Case No.298 of 2007 on the file of the

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VI Additional District & Sessions Judge, (Fast Track Court), Markapur, Prakasam District, whereunder and whereby, the appellant/accused was found guilty of the offences punishable under Sections 302 & 324 of the Indian Penal Code, 1860 (for short, “I.P.C.”) and accordingly, he was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.500/-, in default, to undergo rigorous imprisonment for three months; and to undergo rigorous imprisonment for one year, for the offences punishable under Sections 302 & 324 I.P.C respectively, and all the substantive sentences of imprisonment were ordered to run concurrently.

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2. The brief facts that are necessary for disposal of the appeal may be stated as follows:

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The accused and Bathula Chinnaiah (hereafter be referred to as ‘the deceased’) are the residents of Avulamanda. PWs.1 to 3 are brother, wife and brother-in-law, of the deceased respectively. The accused and one Kuricheti Chinna Kasaiah (LW.16) made bad propaganda in between PW.1 and Borigorla Masthanamma (LW.15) and they further informed the same to her husband Borigorla Subbaiah (LW.13). On that, one day prior to the occurrence, PW.6 and Borigorla Subbaiah (LW.13) went to the

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house of the deceased and requested the deceased to condemn the behaviour of his brother-PW.1 for which, the deceased warned PW.1 and beat him. On the next day i.e., on 23.03.2004 evening, PW.1 called Borigorla Ramanaiah, Borigorla Subbaiah, Borigorla Rajamma, Borigorla Masthanamma and Kuricheti Chinna Kasaiah (LWs.12 to 16) and accused near the house of the deceased and questioned the accused and Kuricheti China Kasaiah (LW.16) about their propaganda. At that time, the accused bluntly denied about making bad propaganda and thereupon, Borigorla Rajamma (LW.14) warned the accused and went to their house. Even after departure of Borigorla Ramanaiah, Borigorla Subbaiah, Borigorla Rajamma, Borigorla Masthanamma and Kuricheti Chinna Kasaiah (LWs.12 to 16), PWs.1 to 4 and others were present near the Bazaar. The accused felt ashamed on the ground that they were putting blame on him unnecessarily and went into the house, picked up a knife and at about 8:00 p.m, tried to hurl stone against PW.1 and on seeing the same, the deceased caught him and then, the accused stabbed the deceased with the knife under his right arm pit and inflicted bleeding injury. PW.3 went to the rescue of the deceased and in that process, he also received injuries to his both hands.

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Later, the deceased was shifted to the hospital of Dr. Pidikiti Seetharamaiah (LW.17), who suggested to shift the deceased to Vinukonda or Guntur for expert treatment. Thereafter, the deceased was taken to the hospital of PW.5 and on examination, PW.5 declared the deceased as dead. Then, the body of the deceased was brought back to Avulamanda village, and kept in front of a dilapidated elementary school.

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On 24.03.2004 at about 8:30 hours, PW.1 went to Kurichedu police station and presented a report Ex.P1 to PW.9, Sub

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Inspector of Police, who in turn registered the same as a case in Cr.No.27 of 2007 for the offence punishable under Section 302 I.P.C, and thereafter, submitted the copies of Express First Information Reports to all concerned. Thereafter, PW.12Inspector of Police, Darsi, took up investigation in the case, visited the scene of offence, observed the same, seized the blood stained lungi, blood stained earth and control earth under the cover of Mahazar Ex.P1, duly attested by PWs.8 & 10. PW.13 held inquest over the dead body of the deceased. PW.12 examined the witnesses, recorded their statements, drafted inquest panchanama Ex.P2 attested by PWs.8, 10 and others, and sent the dead body to the Community Health Centre, Darsi for postmortem examination. On 12.04.2004, PW.12 arrested the accused and seized a knife (MO.2) at the instance of the accused, and after completing the investigation, he laid charge sheet against the appellant/accused before the Judicial First Class Magistrate Court, Darsi, for the offences punishable under Sections 302 & 324 I.P.C.

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3. On appearance of the accused, the trial Court framed the following charges against them:

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“Firstly: That you on or about 23^rd day of March, 2004 at about 20.00 Hrs, at Avulamanda Village did commit the murder of the deceased Bathula Chinnaiah S/o Chinna Kotaiah of Avulamanda Village by intentionally causing his death by stabbing him with knife under the right arm pit and thorasic chest and you thereby committed an offence punishable U/Sec.302 IPC and within my cognizance.

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And I hereby directed that you be tried by this Court for the above said charge.

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Secondly: That you on the same day at the same time at same place mentioned in charge No.1 Voluntarily caused hurt to LW6 Matte Chinna Alluraiah S/o Guravaiah of Avulamanda Village by means of

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knife which is an instrument of stabbing and thereby committed an offence punishable U/sec.324 IPC and within my cognizance.

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And I hereby directed that you be tried by this Court for the above said charge.”

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4. When the said charges were read over and explained to the appellant/accused in Telugu, he pleaded not guilty and claimed to be tried.

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5. To substantiate the charges, the prosecution examined P.Ws.1 to 13 and got marked Exs.P.1 to P.15, besides the case properties MOs.1 to 4.

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6. After closure of the prosecution evidence, the appellant/accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances, appearing against him in the evidence of the prosecution witnesses. He denied the same and got examined DW.1 and got marked Ex.D3 on his behalf. Further, he also got marked Exs.D1 & D2, during the cross-examination of PWs.2 & 3.

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7. The trial Court after hearing both sides and taking into consideration, the oral and documentary evidence available on record, convicted and sentenced the appellant/ accused as stated above. Aggrieved by the said convictions and sentences, the present appeal has been preferred by the appellant/accused.

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8. Now, the points for determination are:

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1. Whether the death of the deceased is a homicidal death?

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2. Whether the prosecution is able to prove its case beyond all reasonable doubt against the appellant/accused of the offences punishable under Sections 302 & 324 I.P.C?

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3 . Whether the Judgment of the trial Court is

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correct, legal and proper?”

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9. POINTS: The learned counsel appearing for the appellant argued that the trial Court erred in believing the evidence of PWs.1 to 4, who are enemically disposed of, towards the appellant; that there are contradictions and omissions in their evidence; and that PW.4 is not an independent witness. It is further argued that PWs.1 to 3 are not the eye witnesses and they are not present at the time of the incident and the Court below erred in believing their evidence and wrongly convicted the appellant. The learned Counsel also argued that the prosecution failed to explain the delay in lodging the complaint Ex.P3, though the police station is situated in the same village and no report was given on the same day by PW.1, and therefore, the delay in giving complaint to the police is fatal to the prosecution case. It is also argued that the evidence of PW.4 cannot be taken into consideration as he is related to the appellant and he is the brother-in-law of the appellant and he is enemically disposed of with the appellant, and therefore, his evidence cannot be considered; and that PWs.1 to 3, are also related to the deceased, and their evidence is interested one. The learned counsel also argued that the real picture of the incident was suppressed by the prosecution and the alleged incident was so sudden that a quarrel took place between the deceased and the appellant, and in that quarrel, the deceased received injuries; that the medical evidence is not corroborated with the ocular evidence produced by the prosecution and the deceased sustained only single injury. The learned counsel also argued that the appellant is a handicapped person and DW.1-doctor examined him and issued Ex.D3disability certificate and with that disability, the appellant cannot

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cause such an injury to the deceased. He also argued that there is no motive for the appellant to attack the deceased and a false case has been foisted against the appellant, and therefore, prayed the Court to acquit the appellant of the said charges.

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10. On the other hand, the learned Additional Public Prosecutor representing the State argued that the evidence of PWs.1 to 4 is corroborated with each other and their evidence is cogent and trustworthy and they categorically stated about their witnessing the incident; that they also witnessed the verbal altercation took place between the accused and the deceased prior to the attack; that all the witnesses categorically stated that when PW.3 tried to interfere, he also received injury to his finger; and that the evidence produced by the prosecution clearly established the guilt of the appellant beyond reasonable doubt. It is also argued that the evidence of PWs.1 to 4 is reliable, trustworthy, cogent and corroborated with each other and prosecution proved the incident and thus, the prosecution is able to establish the guilt of the appellant beyond reasonable doubt and prayed the Court to dismiss the appeal.

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11. POINT No.1: PW.8 is the resident of Avulamanda. At the time of inquest, he was called by the police. PW.8 stated that he acted as inquest panchayatdar along with one Dara Hanmantharao, Devineni Audinarayana and Vijaya Prabhakara Rao; that inquest report Ex.P2 was drafted in his presence and he attested the same; that under Ex.P2, the inquest panchayatdars gave opinion that deceased died due to stab injuries. In the cross-examination, nothing has been elicited to disprove his evidence.

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12. PW.12, who is the Investigating Officer, stated that on 24.03.2004, after receiving the information through Sub Inspector of Police, Kurichedu, and after receiving the copy of the Express First Information Report, he went to Avulamanda village along with Sub Inspector of Police, Kurichedu, and found the dead body of the deceased in front of the dilapidated elementary school situated, in the outskirts of the village; and that he conducted inquest panchanama over the dead body of the deceased in the presence of PW.8, one Dara Hanamantharao, Adinarayanarao and Gotipati Vijaya Prabhakar Rao under Ex.P2.

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13. PW.13 is the doctor, who conducted post-mortem on the dead body of the deceased on 24.03.2004 at about 3:15 p.m and found the following ante-mortem injuries:

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Eyes closed. Mouth semi-opened tongue within the oral cavity.

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External Injuries:

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1. An incised penetrating injury of 1 ½” X ½” depth into the thoraix chest cavity on eight side chest near anterior auxillary line.

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2. An incised wound of size 2 ½” X ½” bone deep present near right wrist joint dorsal aspect.

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Both the injuries are ante-mortem in nature.

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Head and neck:

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Scalp congested. No fracture of skull bones. Meaninges in tact brain normal, neck muscles normal. No fracture of Hyoid bone.

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Thorax:

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On explanation of injury No.1 on right chest, it is entering into the right chest thorasic cavity injury on the right lung and also nearly 2 Ltrs, of blood collection noted in right plural cavity. Left side lung is normal. Left side plural cavity is normal. Heart chambers empty. Diaphragm normal.

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Abdomen:

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Stomach distended with gas and partly digested food material small intestines distended with gas and large bowel with gas and faecal matter. Liver congested cut section congested

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spleen congested cut section congested. Both the kidneys congested. Cut section congested. Urinary bladder empty. External genetalia normal. No fracture in extremities.

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According to PW.13, both the injuries are ante-mortem in nature and both may be possible by a single blow and the first injury is sufficient to cause death in the ordinary course of nature. During the internal examination, he found the first injury on the right chest, entering into the right chest thoracic cavity, injury in the right lung. He further noted two liters of blood collection in right plural cavity. PW.13 opined under Ex.P14 postmortem report that the deceased appears to have died of shock and haemorrhage due to injury to right lung by a sharp object 16 to 22 hours prior to his examination.

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14. Thus, from a perusal of the evidence of PWs.8, 13 & 12 coupled with recitals in Exs.P2 &14, it is evident that the death of the deceased is a homicidal death.

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15. POINT No.2: Now, it is to be seen whether the accused is the assailant of the deceased?

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16. There is no dispute that on 24.03.2004 at 08:30 hours, PW.1, who is the brother of the deceased. went to Kurichedu police station and lodged a complaint Ex.P3 and the same was registered by PW.9-Sub Inspector of Police, Kurichedu, as a case in Cr.No.27 of 2004 for the offence punishable under Section 302 I.P.C against the appellant. PW.9 issued the First Information Report Ex.P4 and informed the same to all the concerned officers including PWs.1 & 2. After knowing about the information, PW.12 Investigating Officer reached Kurichedu village, along with PW.9Sub Inspector of Police, and thereafter, he reached Avulamanda village, and found the dead body of the deceased in the Varandah

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of the dilapidated elementary school situated in the outskirts of the village. From there, he visited the scene of offence and secured the presence of the mediators PWs.8 & 10, who are the mediators to the scene of offence observation report Ex.P1. PW.8 stated that he was present when scene of offence observation report was prepared by the police and he attested the same, and that MO.1 is the lungi seized by the police at the scene of offence in his presence. PW.10 also stated that he acted as a mediator for the scene of offence observation report. The Investigating officer PW.12 clearly stated that when he inspected the scene of offence, a blood stained cotton lungi was available at the scene of offence and the same was seized by him and he also seized the blood stained earth and also control earth under Ex.P1, which was attested by PWs.8 & 10. Even PW.1 also stated that MO.1 is the lungi of the accused, which was available at the scene of offence and seized by the police.

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17. A perusal of the evidence of PW1 and Ex.P1 observation report shows that deceased is the elder brother of PW.1 and they are the residents of Avulamanda village and doing cultivation. PW.2 is the wife of the deceased. PW.1 and his brother were residing in the same house. The accused and Chinna Kasaiah stated to the husband of one Borigorla Masthanamma and his junior paternal uncle PW.6 that PW.1 used to talk with Borigorla Masthanamma and they raised suspicion in their minds that PW.1 had illicit affair with her. Thereupon, the husband of said Mastanamma, PW.6 and mother-in-law of Mastanamma and others questioned the deceased in this regard. On the same day, when PW.1 came to his house after attending coolie work, the deceased chastised him and beat him. As he was innocent, he

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became anger and called the accused and villagers Borigorla Ramanaiah, Borigorla Subbaiah, Borigorla Rajamma, Borigorla Masthanamma and Kuricheti Chinna Kasaiah (LWs.12 to 16) to his house in order to prove his innocence. In their presence, the deceased and himself questioned the accused and Kuricheti Chinna Kasaiah, as to why they were creating false allegations against him. Then the accused and Chinna Kasaiah did not give any reply. Thereupon, the persons who attended with Borigorla Ramanaiah, Borigorla Subbaiah, Borigorla Rajamma, Borigorla Masthanamma and Kuricheti Chinna Kasaiah left their house. Then the deceased pushed the accused stating as to why such wild allegations were created. The accused became anger and went to his house and brought the knife (MO.2) hiding at his naval part and the accused also attempted to hurl stone against him, but the deceased warded it off by holding the left hand of the accused. The accused drew the knife from his naval and stabbed the deceased on his right arm pit. Due to the stabbing, the deceased leaned towards him and in the meanwhile, accused attempted to stab again, but PW.3 interfered and warded it off. During that process, PW.3 received injury to his right hand. PW.3 also caught hold the lungi of the accused (MO.1) to prevent the accused from escaping, but the accused ran away even by leaving his lungi in the hands of PW.3.

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18. PW.1 also stated that they took the injured to Pidikiti Seetharamaiah, who is a R.M.P doctor in their village and he advised them to take the injured either to Guntur or Vinukonda; that then they engaged a jeep and shifted the injured to Vinukonda; that on the way due to the seriousness of the condition of the injured, they took him to Government Hospital, Kurichedu, where

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the doctor examined the injured and declared him as dead; that then, they brought back the deceased to the village and placed in a school located at the outskirts of the village.

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In the cross-examination, PW.1 admitted that there were no disputes or enmity between the accused and the deceased; that house of PW.4 is situated at a distance of 100 meters from his house, and the houses of PWs.3 & 4 are situated in different bazaars and if the galata takes place, it can be heard, but it cannot be visible. PW.1 also admitted that sister of PW.4 is given in marriage to the accused, and due to the differences, they separated from each other in the presence of elders by settling their monetary claim. PW.1 also admitted that Kurichedu police station is situated at a distance of 100 yards from the house of PW.5; that they did not give any report to the police, when they took the deceased to PW.5, who is a R.M.P doctor and he did not see the knife prior to the stabbing by the accused and he did not receive any injury in the incident and he did not interfere between the accused and the deceased.

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19. Ex.P3 is the complaint given by PW.1. The same was registered as Ex.P4 First Information Report. In Ex.P3 also, PW.1 narrated the entire incident happened on 23.03.2004 between the accused and the deceased. PW.1 categorically stated that accused attacked the deceased with a knife and caused the injuries.

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20. PW.2, who is the wife of the deceased, is also an eye witness to the incident. She clearly stated that the incident took place at about 8:00 p.m, in the vacant site and accused attacked her husband due to which her husband died. Her evidence is corroborated with the evidence of PW.1. In the cross-examination,

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it was also elicited that there was a wordy quarrel started at her residence and the deceased was pushed towards vacant site and the main incident of stabbing took place in the vacant site and she honestly admitted that she did not see the actual stabbing, but she saw when the deceased fell on the ground. PW.2 also stated that PW.3 received injury to his right hand; that when PW.3 caught hold the lungi of the accused when he attempted to ran away, the accused ran away by leaving his lungi at that place and they witnessed the incident with the aid of illumination of street lights available at the scene of offence.

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21. PW.3, who is also related to the deceased, stated that on the date of the incident, an altercation took place between the accused and the deceased; that he also saw that the deceased pushed the accused by saying as to why they were making false propaganda in between PW.1 and one Mastanamma and thereupon, accused went to his house and brought the knife hiding at his naval part and then raised his hand in order to hurl a stone against PW.1; that the deceased warded it off by holding the stone and hand of the accused and thereupon, the accused drew the knife and stabbed the deceased on his right arm pit; that when the accused attempted to stab the deceased, again PW.3 warded it off and he received injury to the fingers of his both hands; that the accused ran away from the scene of offence; that the injured was taken to the R.M.P doctor by name Seetharamaiah in the village, who advised them to take the injured to the doctor at Vinukonda; that they shifted the injured in a jeep to Vinukonda and on the way to Vinukonda near Kurichedu, he died; that they brought the deceased to the village and kept his body in an abandoned school in the outskirts of the village.

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In the cross-examination of PW.3, nothing has been elicited to disprove his evidence except eliciting Ex.D2 that on 23.03.2004 between 7:00 and 8:00 p.m, before the house of his brother-in-law (deceased), there was a galata taken place and on that himself, his mother and some others went there. The said contradiction is not a material contradiction, which will help the accused in proving his case. PW.3 in his cross-examination clearly stated that he saw the accused holding a knife firmly in the right hand and attacking the deceased and due to said attack he received injury.

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22. PW.4, who is another eye witness also stated about his presence at the time of offence and clearly stated that a verbal altercation took place between PW.1 and the accused; that the deceased separated PW.1 and the accused and during that process, he pushed both of them; that accused went to his house and came to the place of incident; that accused attempted to hurl a stone against PW.1; that the deceased held the hand of the accused to ward it off; that the accused took the knife from his naval and stabbed the deceased on his arm pit; that the deceased fell down; that when the deceased attempted to stab the deceased, PW.3 held the knife and during that process, PW.3 also received injuries.

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23. The prosecution in this case is primarily relying on the direct evidence of PWs.1 to 4. On a perusal of their evidence, it is evident that the accused and LW.16 China Kasaiah made bad propaganda between PW.1 and Borigorla Mastanamma so as to raise suspicion about illicit affair between them and they informed the same to the husband of Mastanamma, on which the husband of said Mastanamma by name Borigorla Subbaiah and PW.6 came

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to the house of the deceased and PW.1 and asked the deceased, who is the brother of PW.1 to control PW.1, on which the deceased chastised PW.1 and beat him prior to the incident and it is also proved from the evidence of PWs.1 to 4. To prove the innocence, PW.1 called the village people viz., Borigorla Ramanaiah, Borigorla Subbaiah, Borigorla Rajamma, Borigorla Masthanamma and Kuricheti Chinna Kasaiah (LWs.12 to 16) to his house on the date of incident, in whose presence the accused denied of making such bad propaganda against PW.1 and Mastanamma. At about 8:00 p.m on the date of incident, there was a wordy quarrel between the deceased and the accused. The deceased forcibly pushed the accused as to why he was making such a bad propaganda against PW.1 and Mastanamma. On that the accused went to his house and brought a knife hidden at his navel. The accused picked up a stone and attempted to hurl against PW.1 at the scene of offence and the deceased warded it off by holding the hand. Then the accused drew the knife and stabbed the deceased in his arm pit. Due to the stab, the deceased leaned towards PW.1. The accused again tried to stab the deceased, but the same was warded off by PW.3 and in that process, PW.3 received injuries to the fingers to his both hands. Then the accused ran away from the scene of offence leaving his lungi (MO.1) at the place of offence. PWs.1 & 2 are brother and wife of the deceased, who were present at the time of the incident and their evidence cannot be brushed aside. Further, PW.3 is related to the deceased as a cousin brother by courtesy, who was also present at the time of the incident.

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24. The learned counsel for the appellant argued that PW.4 is a person having animosity against the appellant because

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it was elicited from the evidence of PW.4 that the wife of the appellant is the sister of PW.4 and they were separated by a settlement arrived at before the elders and in that connection appellant paid Rs.82,000/- to the sister of PW.4. As per the evidence of the prosecution witnesses, the incident was stated to have taken place in the bazaar near the house of the deceased and the accused and ended at the scene of offence, where the incident of stabbing took place. PWs.1 & 2 in their evidence consistently stated about the entire incident. Though the evidence of PW.4 shows that there is one lane in between his house and the scene of offence, in the cross-examination, nothing has been elicited that there was obstruction of house in between the scene of offence and his house. It is a small village where a small incident can also be heard and visualized by anyone. Further, the evidence of PW.3 cannot be brushed aside because he received the injury in the same incident, as such his presence at the scene of offence cannot be doubted.

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25. PW.13 is the doctor, who examined PW.3 and found the following injuries:

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1. A fine cut injury of 1 cm X ¼ cm muscle deep present on palmar respect of left hand middle finger at the base one and another similar injury present 1” above injury No.1.

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2. Another similar cut injury present on right hand palmar aspect near middle finger one. Another similar injury on tip of right middle finger. (middle finger also).

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3. 1 cm X ¼ cm muscle deep middle finger 1 cm X ¼ cm muscle deep.

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PW.13 issued Ex.P15 wound certificate and he clarified that the injuries may be possible while warding off the single blow by both the hands. In the cross-examination, it is stated that the injuries noted in Ex.P15 may be possible if the knife was caught

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by the injured tightly and the assailant attempted to pull it from his hand.

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26. The learned counsel for the appellant argued that there are several material omissions and contradictions in the evidence of PWs.1 to 4, as such they had not witnessed the incident and their evidence cannot be believed. It is no doubt that the omissions are only regarding the pushing of the accused by the deceased and regarding the witnessing the offence in the illumination of the street lights and from the lights of the house and warding off the blow by PW.3. From a perusal of the evidence of PW.1, it is clear that on the date of incident, accused attacked the deceased due to which the deceased received injury and when the accused tried to attack second time, PW.3 prevented him and at that time PW.3 also received injuries to his fingers and after committing the offence, when the accused ran away from the scene of offence MO.1 was left at the scene of offence. Admittedly, PWs.1 to 4 are the villagers and illiterate persons. They are not expected to state the facts in the same verbal pattern and the contradictions Exs.D1 & D2 carry no weight and they do not affect the evidence of PWs.2 & 3.

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27. PW.5 is the R.M.P doctor of Kurichedu. He stated that on the date of incident, the injured was brought to him at about 6:00 or 7:00 p.m; that he examined him and on his examination, he found the injured was brought dead and he declared him as dead and that he saw the injury on his arm pit. In the cross examination, it was elicited that Kurichedu police station is 200 feet away from his house.

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28. PW.6 is the uncle of one Borigorla Subbaiah as

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Subbaiah is the son of his elder brother. Rajamma is the mother, and Mastanamma is the wife, of Subbaiah. He stated that on the previous day of the incident, he questioned the deceased about the conduct of PW.1; that on the same day, he came to know that deceased beat PW.1 on a complaint given by him and PW.1 called the accused and Chinna Kasaiah (LW.16) to prove his innocence; that he and his wife also proceeded the place where galata took place and thereafter, he took Borigorla Rajamma and Borigorla Masthanamma (LWs.14 & 15) to his house; that subsequently, he came to know the quarrel continued at the house of the accused and during that quarrel, accused stabbed the deceased with a knife on the following day, for which the death of the deceased was caused.

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29. PW.7 is the photographer who took the photographs of the scene of offence and the dead body of the deceased.

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30. PWs.10 & 11, who are the mediators for the confession and recovery of material objects, did not support the prosecution case and turned hostile. They have identified only their signatures as Exs.P5 to P8.

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31. PW.12 is the investigating officer. He recorded the statements of the witnesses, conducted the scene of offence observation, prepared rough sketch, conducted inquest by preparing inquest panchanama in the presence of mediators, seized MOs.1 & 2 and sent the dead body to postmortem examination to the Community Health Centre, Darsi. On 12.04.2004, he received credible information and in the presence of PWs.10 & 11, he arrested the accused and in their presence, accused confessed about the commission of the offence. Ex.P9 is

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the admissible portion of the confession made by the accused. In pursuance of the confession made by the accused, he visited the Bollakondarayudu Temple situated in Naidupalem village, where the accused picked up a knife and produced before him stating that it was the weapon used in commission of the offence. MO.2 is the knife. PW.12 sent the material objects to Regional Forensic Science Laboratory, Guntur and after receiving the Regional Forensic Science Laboratory Report and after completing the investigation, he filed the charge sheet.

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32. So far the disability of the accused is concerned, it cannot be believed. DW.1 doctor in his cross-examination stated that he did not mention the history of the disability in Ex.D3 certificate and Ex.D3 is issued to the patient to get benefits of the Government. Accused was examined on 20.02.2009 by DW.1 and the cause of disability is stated as burns or injuries and it cannot be said that the accused is having disability even by the date of the incident. Even the Investigating Officer did not find any physical disability when he arrested the accused on 12.2.2004.

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33. The contention of the learned counsel for appellant is that there is no motive for the appellant to commit the offence of murder against the deceased and the prosecution failed to prove it and further contended that accused was incapacitated to commit the offence since he is a handicapped person and the evidence of DW.1 is sufficient and Ex.D3 shows that he is a handicapped person. It is further contented that non-examination of the independent witness is fatal to the prosecution case though so many people alleged to have witnessed the incident and the genesis of the report itself is tainted, and therefore, the appellant is entitled for clean acquittal and further argued that the quarrel

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took place on the date of incident between the deceased and the appellant and it is a sudden quarrel and in the absence of motive, the appellant is entitled for lesser punishment and relied on the case law reported in Kulwant Rai v. State of Punja b^[1] , wherein it is held as follows:

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“2. We have gone through the judgment of the learned Sessions Judge who has summed up the circumstances in which the offence came to be committed. The learned Judge found that the accused at the time of the offence was aged about 20 years. The offence was committed without any premeditation. The learned Judge also found that there was no prior enmity. He also recorded that a short, quarrel preceded the assault. All these would not have weighed with us, except the fact that only one blow was given with a dagger and the blow landed in the epigastria area. The deceased succumbed to the injury. The learned Sessions Judge convicted the appellant for an offence under Section 302 Penal Code and sentenced him to suffer imprisonment for life.

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3. When the matter was before the High Court it was strenuously urged that in the circumstances of the case part I of Section 300 would not be attracted because it cannot be said that the accused had the intention to commit the murder of the deceased. In fact, that is conceded. More often, a suggestion is made that the case would be covered by part 3 of Section 300 Penal Code in that not only the accused intended to inflict that particular injury but the injury intended to be inflicted was by objective medical test found to be sufficient in the ordinary course of nature to cause death. The question is in the circumstances in which the offence came to be committed, could it ever be said that the accused intended to inflict that injury which proved to be fatal. To repeat, there was an altercation. There was no premeditation. It was something like hit and run. In such a case, part 3 of Section 300 would not be attracted because it cannot be said that the accused intended to inflict that particular injury which was ultimately found to have been inflicted. In the circumstances herein discussed, it would appear that the accused inflicted an injury which he knew to be -likely to cause death and the case would accordingly fall under Section 304 Part II Penal Code.”

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Admittedly, PW.1 brother of the deceased stated that prior to the incident there were no quarrels and enemity between the deceased and the accused; that on the date of incident, the deceased called the accused to his house to ask him as to why he and Chinna Kasaiah (LW.16) were making bad propaganda against

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his brother (PW.1) and one Mastanamma wife of one Borigorla Subbaiah (LW.13), on which altercation took place between the deceased and the accused and that led the accused to grow wild and he brought the knife and attacked the deceased due to which the deceased died. As per the prosecution witnesses, the incident of wordy quarrel and pushing had taken place on the bazaar located in between houses of the deceased and the accused and the incident of stabbing took place in the vacant site of Venkateswarlu, which is situated opposite to the house of the accused by the side of the house of the deceased.

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34. Under Section 300 IPC, except in the cases excepted therein, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death; or secondly if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or thirdly, if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or fourthly, if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Where culpable homicide falls under any one of the four clauses of Section 300 IPC and none of the exceptions applies, the culpable homicide is murder and is punishable under Section 302 IPC. Exception 4 of Section 300 IPC can apply if all the four conditions laid down are satisfied viz. (1) absence of pre-meditation; (2) there must be a sudden fight; (3) the killing must be in the heat of passion upon a

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sudden quarrel; (4) the offender should not have taken undue advantage or acted in a cruel or unusual manner.

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35. As per the evidence of P.Ws.1 to 4, it is clear that the appellant/accused was not armed with any weapon and due to the unexpected altercation that took place, the accused, in a fit of anger, went into the house and brought MO.2 knife keeping it at the naval, and stabbed the deceased, and went away from the scene of offence. So, in a fit of anger, without pre-meditation, as there was a dispute with regard to the asking of the deceased before the villagers, the appellant/accused lost control and stabbed the deceased. The death of the deceased is not instantaneous. The injured survived until he was taken to the hospital for treatment. Furthermore, the appellant/accused has not taken any undue advantage of the situation. In a fit of anger, without any pre-meditation, he made the attack. It is not a preplanned attack. Therefore, there was no intention on the part of the appellant to kill the deceased. Though appellant had no premeditation to cause death of the deceased, at the same time, he must have knowledge that the injuries are likely to cause death of the deceased. A man is presumed by law to intend the ordinary and natural as well as the necessary consequences of his acts. Therefore, the act committed by the appellant squarely falls under exception 4 of Section 300 IPC. So, the case law relied on by the appellant in Kulwant Rai’s case (cited supra) is applicable to this case and therefore, the appellant is liable to be convicted for the offence punishable under Section 304 Part II I.P.C.

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36. Further, with regard to the offence under Section 324 I.P.C is concerned, during the course of altercation when the appellant was trying to stab the deceased for the second time,

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PW.3 interfered and caught hold the knife in order to ward it off, and thereby he received injuries on his fingers of both hands. PW.13 doctor, who treated PW.3 also stated that he received simple injuries and the injuries can be caused by a sharp object like MO.2 knife. The evidence of PWs.3 and 4 also supported the evidence of PWs.1, 2 & 4. Thus, the prosecution able to prove beyond all reasonable doubt that the accused has voluntarily caused hurt to PW.3 and thus, the appellant/accused is liable for punishment for the offence punishable under Section 324 I.P.C also.

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37. Accordingly, the conviction and sentence recorded in the Judgment dated 26.08.2009 in Sessions Case No.298 of 2007 on the file of the VI Additional District & Sessions Judge, (Fast Track Court), Markapur, Prakasam District, for the offence punishable under Section 302 I.P.C. are set aside. Instead, the appellant/accused is found guilty of the offence punishable under Section 304 Part-II I.P.C., and accordingly he is convicted and sentenced to undergo rigorous imprisonment for a period of seven years for the said offence. With regard to the conviction and sentence imposed against the appellant/accused for the offence punishable under Section 324 I.P.C, they are hereby confirmed. Both sentences shall run concurrently. The period of detention underwent by the appellant/accused during investigation, trial and after conviction, shall be given set off under Section 428 Cr.P.C.

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38. The Criminal Appeal is partly allowed to the extent indicated above. Miscellaneous Petitions, if any, pending in this Criminal Appeal shall stand closed.

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JUSTICE K.C.BHANU

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_______ JUSTICE ANIS

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Date: 25.02.2014 sr

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[1] AIR 1982 SUPREME COURT 126

Banka Palankaiah v. The State of Andhra Pradesh

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Banka Palankaiah v. The State of Andhra Pradesh

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