Thathadi Appala Naidu Vs. Inspector of Police, Gagapathinagaram Circle, Vizianagaram District - Court Judgment

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criminal - change in sentence - sections 304 and 324 of indian penal code, 1860 - accused convicted under section 304 for causing death of deceased by hitting him on head and chest - deceased died due to chest injuries - beating on chest not recorded in fir - circumstances depicting chest injuries might have been caused on way to hospital - conviction altered to one under section 324 from sentence given under section 304. - - when the witnesses were in-adept in describing an incident and did not comeforth with a vast amount of details, their evidence merely on this ground cannot be considered to be unreliable.1. this appeal is directed against the judgment, dated 4-3-1996 rendered in scno.112 of 1995 on the the of the learned sessions judge, vizianagaram convicting the accused-appellant for an offence punishable u/s 304, part-11 of the indian penal code and sentencing him to suffer rigorous imprisonment for a period of five years and to pay a fine of rs.1000/- and in default to undergo simple imprisonment for a period of six months.2. the facts relating to this appeal may briefly be stated as follows: the deceased, thothadi bangarayya, is the brother of the accused. they purchased the land to be used as threshing floor in the gollupalam village from thothadi narinaidu, pw5. as there were some disputes in respect of the land, it was partitioned with the help of the elders gollu appalanaidu, pw6 and thothadi krishna, pw7 and the land came to be in their seperate possession as per their respective shares. they used to keep the manure in seperate heaps on their respectiveshares. on 17-4-1995 in the early hours thoihadi ywrinaidu, pw1, the son of the deceased, went to their manure liecp and loaded the manure in a bullock cart and took it to their field and dumped the manure there. he and his younger sister, thothadi ramu, pw2, went to the said manure heep at about 6-00 a.m. they saw the accused abusing the deceased in a filthy language as to why he was driving the cart over his manure heap. the deceased reprimanded the accused for abusing him and said that they are taking their own manure. then the accused pounced upon the deceased to fight with him. in the meanwhile the deceased hit the accused with a stone on his right check causing some minor injuries. upon (his the accused attacked the deceased with a spade (m.o.1). the deceased fell down on the ground. the accused beat the deceased with the same spade thrice on both sides of his chest. pv2 raised hue and cry. the accused then left the place. the deceased was shifted in a bullock cart to bondapalli police station, where the sub-inspector of police, pw11 recorded his statement in ex.pl and issued fir, lx.p7. from there the deceased was taken to government hospital, gajapathinagaram, but he died on the way at about 8-40 a.m. on the same day.3. on receiving this information of the death of the deceased an altered fir in rx.ps was issued by pwi1 under section 302, 1pc. thereafter pw12, sub-inspector of police, took up the investigation, visited the scene of offence and prepared the observation report in the presence of the mediators go/hi satyanarayana, pv8 and another. he seized the btood stained earth, control earth and blood stained spade from the scene of offence. he prepared a sketch of scene of offence in ex.p9. he also went to the hospital, and conducted inquest over the dead body of the deceased at about 1-30 p.m. in the presence of pw8 and four others. he sent the incriminating articles to the forensic science laboratory for analysis. pw10, s. chandrasekharam,inspector of police, received the report of the analyst in ex.p6. after inquest post-mortem examination was conducted by dr. p. sravan kumar, pw9, who prepared the post-mortem report, ex.p4. the accused was also referred to the government hospital for examination and he was examined by pw9, who issued the wound certificate relating to the accused under ex.p5. later pw10 filed the charge-sheet.a charge for the offence punishable under section 302, ipc was framed against the accused. pws 1 to 12 have been examined and exs.pl to p9 and mos.1 to 4 have been marked on behalf of the prosecution. the accused has not chosen to examine any defence witnesses on his behalf. when questioned as to the commission of offence, the plea of the accused was one of total denial.4. on this evidence the learned sessions judge held that the charge under section 302, ipc was not made out, but as sialed above, convicted the accused for an offence under section 304, part-ii, ipc and imposed sentence of imprisonment and fine as stated above.5. the question for consideration is whether the charge u/s.304 part-ii, ipc has proved against the accused beyond reasonable doubt.6. the prosecution in this case relies on the following evidence:(1) the occular evidence of pws.l and 2; (2) the evidence of pw3, who is said to have joined pws.l and 2 in taking the deceased to the police station and to the hospital soon after the incident; and (3) the evidence of recovery of blood stained spade, m.o.i and blood stained earth, m.o.3 from the place of incident; (4) the medical evidence given by pw9 describing the injuries found on the deceased, which is said to corroborate the version given by pws.l and 2 and the evidence regarding the finding of injitries on the accused.7. pw1 who is the son of the deceased in his evidence deposed that on ihe date of the incident at about 7-00 a.m. while he and pw2 were at their threshing floor the accused questioned the deceased as to why they were loading the manure in the cart. the deceased reacted to that questioning as there was some misunderstanding earlier between the deceased and the accused. in the meanwhile the deceased threw a small stone at the accused. upon this the accused beat ihe deceased with an iron spade, m.o.i on the iiead of the deceased. then the deceased fell down on the ground. then the accused beat the deceased thrice with the same spade on his chest. thereafter himself and pw2 took the deceased to bondapalli police station, which was 8 kins, from the place of occurrence. at the police station the deceased gave a statement which was recorded by the sub-inspector of police on which the deceased had fixed his thumb impression. while the deceased was being taken in the bullock cart to the hospital at gajapathinagaram, he died at bodasagapeta village on the way. at the hospital he was declared as dead.8. pw2 seeks to corroborate pv 1 and deposes on identical lines with pwi. pw2 identifies m.o.i as the spade used by the accused. according to pw2 this incident occurred just when herself and pwi were entering the threshing floor. pw3, medapureddi ruinana, the husband of pw2 has deposed that he was not present at the lime of the incident, but he joined pws.l and 2 while the deceased was being taken in the bullock cart to the police station. he travelled with them in the said bullock cart.9. the presence of pws. 1 and 2 at the place of incident is probable and natural. considering the back ground of some disputes between the deceased and the accused in respect of the property the version of altercation between the deceased and the accused on some trivial matter relating to theloading of the manure in the cart is consistent with probabilities.10. sri g. krishna rao, learned counsel for ihe appellant assails the evidence of the eye-witnesses. pws. i and 2 on two grounds. firstly it is contended that the version given by pws.l and 2 is cryptic and does not throw light on the detailed circumstances of the incident, which is alleged to have occurred on the crucial day. when the witnesses were in-adept in describing an incident and did not comeforth with a vast amount of details, their evidence merely on this ground cannot be considered to be unreliable.11. secondly it is contended by the learned counsel for the appellant that the presence of pw2 at the place of incident at any rate is doubtful. to butress this contention it is pointed out that ex.pl, the alleged statement of the deceased on which fir was recorded does not mention the presence of pw2. it has also been elicited that pwi has not slated about the presence of pw2 at the time of incident in his earlier statement. it is further pointed out that the evidence of the investigating officer does not contain a statement that he examined pw2. it would however appear that a copy of the statement of pw1 recorded under section 161, cr.p.c. was part of the record which was furnished to the accused. mere omission of the investigating officer to state that he examined among others pw2 in itself may not be sufficient to conclude that pw2 was not present at the relevant time. considering the circumstances the presence of pws.l and 2 at the time of the incident, which was believed by the trial court, cannot be doubted.12. the next contention of the learned counsel, however, is that even assuming that p.ws.1 and 2 were present at the time of the incident, their evidence is wholly unworthy of credit in view of major improvement, which they made in their depositions in thecourt when compared to the version found in fir, ex.p1. the contents of ex.pl seem to support the learned counsel's contention that pws.1 and 2 made major improvement? in their version. it is the positive version of pws.1 and 2 as given in court that after the accused had hit (he deceased with the spade on his head, the deceased fell down and thereafter the accused hit the deceased with the blunt part of the spade thrice on his chest. this version as to bealing of the deceased on his chest with the spade by the accused is conspicuous by its absence in ex.pl. it is the case of the prosecution and the version of pws.l and 2 that (he sub-inspector of police, pw11 recorded the statement of the deceased in the presence of these witnesses. this omission assumes some significance in view of the fact that according to the evidence of the doctor, pw9, who conducted post-mortem examination on the deceased, the injuries received on the chest, which resulted in major internal injuries constituted ultimately, the cause of death of the deceased. it is the specific evidence of pw9 that (he injury on the head of the deceased was not at all contributory factor for the death of the deceased and it was the internal injuries resulting from hitting on the chest, which resulted in the death of the deceased. thus these injuries have far reaching significance as (o the cause of death of the deceased and the version given in ex.pl does not incorporate any act of the accused, which can be related to these injuries.13. in fact, as rightly pointed out by the learned counsel for the appellant, it is doubtful whether the deceased was really in a position to give a statement to (he police. it is stated by pw1 in his cross-examination 'on the information given by us, (lie police obtained thumb impression of our father'. it is also stated by pw1 that his father was unconscious when they took him into the cart for going to the police station'. leaving aside the question whether the deceased really gave a statement or not and taking any viewof the version of pw1 as to whether the statement was recorded in (heir presence or it was their statement on which the thumb impression of the deceased was taken, the fact remains that pws.l and 2 were actively present when ex.p 1 was prepared at the police station. if they really witnessed the accused hitting the deceased with the blunt end of the spade thrice on the chest, which ultimately found to have resulted in his death, this version could not have been omitted in ex.pl. even in ex.ps, which is the fir issued on the basis of an information of pw1 as to (he death of the deceased, this version as to beating on the chest is not found. in view of these circumstances it must necessarily follow that pws.l and 2 improved their version substantially by deposing about the accused having dealt three blows with the spade on the chest of the deceased.14. the question, however, is whether as contended by the learned counsel the entire version of pws.l and 2 has to be thrown out for this improvement or their version has to be disbelieved to the extent of improvement.15. as already observed above the presence of pws.l and 2 at the place of incident cannot be considered to be improbable. nothing has been pointed out in the evidence of pws.l and 2, except this improvement to show that their entire evidence is false. further pws. 1 's version is substantially corroborated by the very fact of lodging of fir promptly. besides the version given by pws. 1 and 2 to the extent of injury on the head of the deceased is corroborated by medical evidence. considering this circumstance, i am not inclined to accept the view that the entire testimony of pws. 1 and 2 must be discarded from consideration. however, what follows from this discussion is that the version of pws.l and 2 that they witnessed the accused having dealt blows on the chest of the deceased with the spade cannot be believed as it is not free from doubt.16. it is pertinent to metition here that after the incident, which is said to have occurred at about 6 or 7 a.m., by the time the deceased was taken to the hospital, there was a lapse of 6 to 6-1/2 hours. even after recording fir, ex.pl at 8-15 a.m., it was more than five hours thereafter that the deceased reached the hospital. thus the evidence on record renders the version of pws. 1 and 2 that the accused dealt blows on the chest of the deceased is doubtful. it is difficult to fathom as to at what point of time, the deceased might have received the injuries on the chest. the possibility of the deceased having received these injuries after the lodging of the fir at 8-15 a.m. and before he reached the hospital at about 1-30 p.m. cannot be ruled out.17. in view of the above, the conviction of the accused for the offence punishable under section 304 part-11, ipc cannot be sustained, but from the acceptable evidence of pws.l and 2, what is proved beyond reasonable doubt is that the accused dealt blow with the spade- on the head of the deceased, resulting in simple injury. these acts of the accused do constitute the offence under section 324, ipc. in the result the appeal is allowed partly.18. the conviction of the accused for the offence under section 304 part-ii and the sentence of rigorous imprisonment for five years and to pay a fine of rs.1000/- and in default to undergo simple imprisonment for a period of six months is set aside. instead, the accused is convicted for the offence punishable under section 324, ipc and is sentenced to suffer rigorous imprisonment for a period of three months and to pay a fine of rs.1000/- and in default to undergo simple imprisonment for a period of one month. the period of sentence already undergone by the accused shall be set off under section 428, cr.p.c.