Kompally Ashok Vs. State of Andhra Pradesh - Court Judgment

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criminal - grievous hurt - sections 34, 302, 324, 325 and 326 of indian penal code, 1860 - appeal preferred by first accused against being charged under sections 302 and 324 by session judge - high court considered entire evidence on record both oral and documentary - having regard to facts and circumstances high court opined that appellant accused (a1) not guilty for offence under section 302 - a1 guilty of voluntarily causing grievous hurt by dangerous weapon like knife punishable under section 326 - evidences of prosecution witnesses 2 and 4 was proved that a1 assaulted deceased with knife and caused injuries - held, offence committed by a1 to fall under section 326 and not under section 302. - - he opined that the injuries were simple in nature and were possible by a sharp edged weapon like a knife. p4 wound certificate and opined that the injury was simple in nature, and could be caused by a sharp edged weapon like a knife. the cause of death to the best of his knowledge was shock and haemorrhage due to multiple injuries. except injuries 2 and 13, all other injuries could be caused by a sharp edged weapon like knife. it is the further contention of the learned counsel for the appellant that there are glaring contradictions as brought out by the defence and it is not safe to convict a1 on this material. 302 ipc, but he would definitely be guilty for voluntarily causing grievous hurt by dangerous weapon, like knife, punishable under section 326 ipc.b.s. raikote, j.1. this appeal is preferred by the 1st accused/kompally ashok being aggrieved by the judgment, conviction and sentence passed by the sessions judge at nizamabad, dated 12-5-1994, in sessions case no. 295 of 1992. 2. it is to be noted at this stage itself that the prosecution was launched against the accused nos. 1 and 2 viz., kompally ashok and kompally purushotham. the 2nd accused being acquitted, it is the 1st accused who preferred this appeal. 3. accused nos. 1 and 2 were tried for the following charges :- (1) u/ss. 302 r/w. 34, ipc against both the accused. accused no. 1 was convicted for the offence under section 302, ipc and sentenced him to undergo imprisonment for life and to pay a fine of rs. 500/- and in default to suffer si for six months. 2nd accused is acquitted. (2) u/s. 324, ipc against 1st accused for causing hurt to pw2/bommera narsaiah. accused no. 1 was found guilty of the same and convicted and sentenced him to suffer ri for one year. (3) u/s. 324, ipc against 1st accused for causing hurt to pw4/guntaka balnarasaiah. accused no. 1 was found guilty of the same and convicted and sentenced him to ri for 6 months. 4. it is ordered by the trial court that all the above sentences shall run concurrently. 5. the prosecution case was that on 21-10-1988 at about 10.00 p.m. near pochammagalli in domkonda, accused nos. 1 and 2 armed with knives stabbed one bommera gangaram, hereinafter called 'the deceased', and when pw2/bommera narsaiah and pw4/guntaka balnarasaiah intervened, they were assaulted with the knife by 1st accused and accordingly, they received injuries. 6. it is the case of the prosecution that the accused and the deceased are residents of domkonda village. pw1/bommera mallavva is the mother of the deceased. accused nos. 1 and 2 are brothers. accused no. 1 had married pw5/kompally shanta, the younger sister of the deceased and daughter of pw1. pw2/bommera narsaiah is another brother of the deceased. pw6/devasani rajamani is the elder sister of the deceased. 7. it is alleged that the marriage between 1st accused and pw5 took place about five years prior to the incident. pw5 gave birth to one male child through a1. it is stated that pw5 was advised by the doctor not to beget second child, as it would be against her health, but the first accused was insisting that she should have sexual life with him and on that ground, there was quarrel between them and a1 was threatening her with knife and declaring that he would marriage another girl, and thus, he was harassing her. it is the further case of the prosecution that pws. 1 and 2 had arranged a panchayat before the caste elders i.e. pw11/bommera yellaiah and pw13/meka dharampuri and others on 21-10-1988. the panchayatdars decided that a1 could marry another girl and he should not have any sexual connection with pw5. for that, a1 and pw5 agreed. on the same day evening, pw2 along with pw3 and lw14 went to the house of pw4 to have a negotiation regarding a branch of beedi factory for pw3. it is stated that pw4 agreed to give branch of beedi factory to pw3. immediately thereafter, pws2 to 4 and lw14 went to lakshmi wine shop at domkonda for taking beer. at that time, the deceased and a1 were also present in the wine shop. they were taking liquor. both a1 and the deceased came to pw2 with the liquor glasses in their hands and pw2 asked the deceased why he had come along with a1 when the panchayat had decided on that day itself regarding the matter pertaining to a1. pw2 further asked the deceased to go to some other wine shop. a1 paid the bill for the liquor consumed by himself and the deceased and they left the wine shop. however, pw2 was suspicious of a1 and therefore, immediately after paying the bill for the liquor consumed by pw2 and others, pw2 left the wine shop and followed the deceased and a1. by the time pw2 came to the place of occurrence, which was at a distance of about 60 to 70 yards from the wine shop, he found a1 standing with the knife, and the deceased falling down struggling for life. at that time, pw2 asked a1 as to why he attacked the deceased. then, a1 assaulted pw2 with the kife and caused injuries on his right hand. meanwhile, pws. 3 and 4 also came there pw 4 tried to catch hold of a1 and at that point of time, a1 hurled the knife at pw 4 and accordingly, pw4 received injuries behind his right fist and went away. at about 8.00 p.m., a1 went to the house of pw1, his mother-in-law, and caught hold of the wife pw5 and told her that he murdered the deceased. it is the case of the prosecution that at that time, pws. 1, 5 and 6 and one anasuya were present in the house when he made such a declaration. after declaring so, a1 ran away. immediately thereafter, pw1 along with pw5 went to the police station at domkonda and gave a written report, ex. p-1, at about 11.50 p.m. on 21-10-1988. pw 18/sub-inspector of police registered a case in crime no. 139/88. u/s. 307, ipc and accordingly, issued fir (ex. p. 15), pw. 18, after recording the statement of pw1, proceeded to the scene of offence and shifted the injured persons to the government hospital at kamareddy for treatment. 8. pw9/dr. b. rajagopala rao, civil asst. surgeon, govt. hospital at kamaredy, examined the injured gangaram (deceased) at 2.00 a.m. on 22-10-1986 and found the following injuries :- 1) two incised stab injuries on the right lower part of the abdomen 2 x 1/2 c.m. deep into the peritonial cavity through which the intestines are protruding. 2) incised stab injury on left side of the chest lateral aspect 2 x 1/2 c.ms. deep into internal spaces. 3) an incised wound front of the chest lower part 2 x 1/2 x 1 c.m. 4) incised wound on the left upper arm 2 x 1 c.m. two in number. 5) incised wound on the left lateral aspect of the upper part of the thigh 2 x 1 x 1 c.m. 2 1/2 x 1 x 1/2 c.ms. 6) incised wound on the right side of the scrotum 1 x 1/2 x 1/2 cms. 7) incised wound on left palm 1 x 1/4 x 1/4 cms. 8) abrasion over the left leg 1 x 1/2 cm. pw 9 issued ex p5 wound certificate and referred the deceased to gandhi hospital, secunderabad. 9. pw9 also examined pw2 at the same time and found the following injuries :- 1) incised wound on the left axilla region 3 x 1/2 x 1 cms. 2) incised wound on the dorum of the right hand 4 x 2 cm. tendones and muscles are cut. pw9 issued the wound certificate ex. p3. he opined that the injuries were simple in nature and were possible by a sharp edged weapon like a knife. 10. pw9 also examined pw4 at 5.30 a.m. on 22-10-1988 and found an incised wound on the dorsum of the right hand 4 x 1 x 1/4 cms. he issued ex. p4 wound certificate and opined that the injury was simple in nature, and could be caused by a sharp edged weapon like a knife. 11. immediately thereafter, when the deceased was being shifted to gandhi hospital, secunderabad, at about 7.00.a.m. he died on the way. on receipt of death intimation at about 5.00 p.m. on 22-10-1988, pw18 issued the memo, ex. p-12, registering the case u/s. 302, ipc. then pw18 went to gandhi hospital and conducted inquest over the dead body of the deceased in the presence of panchayatdars and prepared ex. p-10 inquest report. 12. pw 10/dr. d. koteswar rao, asst. professor in forsensic medicine, gandhi hospital, secunderabad conducted postmortem examination on the dead body of the deceased at about 10.30 a.m. on 23-10-1988 and found the following 14 antemortem injuries :- 1) an incised wound 1 x 1/2 x 1/4 cms. over the right front of the chest of supra clavicular region 5 cms. from shoulder and 3 cms. from mid-line, the direction of wound is transverse, medial end is round and a lateral edge is sharp. 2) abrasion grazed 1 x 1/2 cms. on front of the chest of right side 13 cms. from midclavicular region and 21/2 cms from midline. 3) a stab wound 21/2 x 1 x deep into abdominal cavity over right iliac fosa 6 cms above the right inguinal ligament, the direction is transverse lateral edge is sharp medial edge is round pierced into the abdominal cavity and omentum is cut. 4) a stab wound 3 x 2 x 3 cms. over right inguinal region pierced downwards, lateral edge is sharp, medial end is round, direction is transverse. 5) the incised wound 4 x 1 x 1 cms. over the middle 1/3rd of the left anterior aspect of, the upper arm direction is vertical and downwards. the upper edge is round and lower edge is sharp. 6) an incised wound 1 x 1/2 x 1/4 cms. over the left thenar area, direction is transverse, medial edge is round and lateral edge is sharp. 7) an incised wound 1 1/2 x 1/2 x 1/4 cms. over the medial aspect of the left upper arm direction vertical, the upper end is round and the lower end is sharp. 8) an incised wound 3 x 1 x 1 cms. in front of the left side of the chest 17 cms from clavical and 3 cms. from mid line, direction is verticle, upper end is round and the lower end is sharp. 9) an incised wound 2 x 1 x 1 cms. over the left outer side of the chest 7 cms. from axilla vertical in direction, upper end is round and lower end is sharp. 10) an incised wound 3 x 1 x 1 cms. over the left lateral side of the chest 15 cms. from axilla, vertical in direction, upper end is round and lower end is sharp. 11) a stab wound 3 x 1 1/2 x 3 cms. over the left later aspect of the hip 8 cms. below the iliac crest. vertical in direction, the upper end is round and the lower end is sharp. 12) an incised wound over the left lateral aspect of the thigh 18 cms. from hip joint, direction is vertical, upper end is round and lower end is sharp. 13) multiple grazed abrasions 6 x 6 cms. over the left knee. 14) a stab wound 4 1/2 x 2 1/2 x deep into thorasic cavity over the back of the chest 1/2 cm. from the mid line right side of the chest pierced into thorasic cavity of right 10th and 11th rib space of paravertibral region. direction is horizontal down-wards upper end is round and lower end is sharp. pw10 issued ex. p6 postmortem certificate. the cause of death to the best of his knowledge was shock and haemorrhage due to multiple injuries. he opined that injuries 3 and 14 were fatal injuries and injury no. 3 by itself was sufficient to cause the death of the deceased. except injuries 2 and 13, all other injuries could be caused by a sharp edged weapon like knife. 13. the inspector of police, kamareddy, took up investigation in this case on 28-10-1988 and subsequently laid charge sheet against the accused. 14. the learned sessions judge, after assessing the entire oral and documentary evidence on record, found a1 guilty of the offence under section 302, ipc and also u/s. 324, ipc for causing simple hurt to pws. 2 and 4 and convicted and sentenced him as stated supra. 15. the learned counsel for the appellant/accused no. 1 strenuously contended that on the material on record, the prosecution cannot bring home the guilt against a1, that the prosecution has not established the motive for the alleged offence and the witnesses are highly interested witnesses and unnecessarily hostile to a2 and on the basis of this material, there could not be a conviction of the appellant for the offences alleged against him. it is the further contention of the learned counsel for the appellant that there are glaring contradictions as brought out by the defence and it is not safe to convict a1 on this material. it is further contended that when a2 was acquitted of the charge levelled against him and as per the oral testimony, it cannot be said decisively who caused the fatal injuries, whether a1 or a2, since by the time the alleged eye-witnesses i.e., pws. 2 to 4 reached the scene of offence the deceased was alive struggling for life and a1 was holding a knife in his hand and when a person, who could not be identified, ran away, and when section 34 of ipc stands excluded on the acquittal of a2, a1 can be convicted only for his individual acts, if any and thus, at any rate a conviction u/s. 302 of ipc is not warranted. 16. however, the learned public prosecutor strongly supported the judgment of the trial court. 17. we have carefully considered the entire evidence on record, both oral and documentary. 18. pws. 2 to 4 are the eye-witnesses to the occurrence. out of them, pws. 2 and 4 are the injured. even though in view of the fact that pw5, the wife of the appellant/a1, has not supported the case of the prosecution as to the motive, we think that having regard to the fact that pws. 2 and 4 are the injured eye-witnesses, motive element is not that important in this case. it is the case of the prosecution that the motive for the murder was that in spite of doctor's warning that a1 should not have sexual relations with his wife, pw5, he was insisting for the same and threatening pw5 with her life and he was also threatening that he would marry another girl and as such, there was a serious dispute between a1 and pw5. therefore, a panchayat was got held to settle the dispute by pw2 and the deceased and it was decided that a1 could marry another girl and he should not have any sexual relations with pw5. in these circumstances, it is suggested that a1 bore ill-will against the deceased. whatever it may be, as we have already stated above, motive element has not assumed much importance in this case. 19. pw2 has categorically stated that on the morning of 21-10-1988, there was a panchayat which settled the dispute between a1 and pw5. in the evening of the same day, pw2 along with pw3 and lw14 went to the house of pw4 to have a negotiation regarding the branch of beedi factory for pw3 and after pw4 agreed for the same, pws.2 to 4 and lw 14 went to lakshmi wine shop at domkonda. the deceased and a1 were already there taking liquor. pw2 stated that he suspected a1 and accordingly, he asked the deceased as to why he had come with him to the wine shop. since already regarding a1, the panchayat had decided a dispute in the morning. he asked the deceased to go to some other wine shop. however, a1 paid the bill for the liquor consumed by himself and the deceased and both of them left the wine shop. since pw2 doubted the bona fides of a1, shortly thereafter, he followed a1 and the deceased. but by the time he reached the scene of offence, the deceased had fallen down with multiple injuries and was struggling for life and a1 was holding knife in his hand. pw2 further stated that he asked a1 why he assaulted the deceased. then, a1 also assaulted him with the knife on his right hand and caused injuries. he further stated that some other person was running away from the scene of offence and he could not identifiy him. he stated that he received injuries on left arm pit also. he further stated that he cried for help. then, pws. 3 and 4 came there. even after pws. 3 and 4 coming over to the scene of offence, a1 was still there. he further stated that he fell unconscious, and the incident had occurred at about 10.30 or 11 p.m. on 21-10-1988. 20. pw3 also stated that after they left the wine shop, pws. 2 and 4 went ahead of him and at that time, he heard some cries. he was going alone. he heard pw2 crying 'stabbed stabbed'. after hearing such a cry, he went to the scene of offence and saw the deceased lying on the ground struggling for life. pw2 also fell down and requested pw3 to go and inform the same in his house. pw3 further stated that pw4 was present at that time. he stated that pw4 was stabbed by a1 in his presence on the right arm. he further stated that by the time pws. 2 to 4 went there, a2, had left the place and he did not see a2. 21. pw4 corroborated the version of pws. 2 and 3. according to him, after leaving the wine shop, when he was going, he heard 'anna save me, brother-in-law save me' and then he ran after pws. 2 and 3. he further says that by the time he went there, the deceased and pw2 were lying on the ground with bleeding injuries. a1 was also present there. when he tried to catch hold of a1, he hurled the knife towards him, as a result, he received a bleeding injury behind his right fist and felt reeling sensation. thereafter, he went home. 22. from the evidence of these three witnesses, it is clear that there is full corroboration on every aspect of the case. pws. 7 and 8, who are the residents nearby to the scene of offence and who came after hearing the cries 'save me, save me', also stated that they saw the deceased lying down and another person standing with bleeding injuries. pw8 further stated that they saw another person running away. 23. from the evidence of pw1, it is further clear that a1, after this incident, immediately went to the house of pw1 with bloodstained clothes, caught hold of pw5 and declared in the presence of pws. 1, 5 and pw6, another sister of the deceased, that he murdered the deceased. pw 1 stated that it was about 8.00 p.m. when a1 came to her. on the basis of the said evidence, the learned counsel for the appellant a1 contended that there is a discrepancy regarding the time and, therefore, the prosecution case cannot be accepted. but it should be remembered that the evidence is recorded nearly after five years of the incident as stated by the learned sessions judge and in the villages, normally people are not conscious of the clock set timing. moreover, pw1 is a rustic woman and the alleged discrepancy as to the timing has no much consequence in this case when pws. 2 and 4 are the injured eye-witnesses. 24. apart from the alleged discrepancy, no other material discrepancy is brought out by the defence in this case. the defence, though, was one of denial, still a suggestion was made to the prosecution witnesses that lw 14, the brother-in-law of pw2, had advanced a loan of rs. 25,000/- to the deceased and as such, there was a dispute and altercation between the deceased and lw 14 and a1 separated them in that altercation. but this suggestion has been denied by all the witnesses. therefore, the suggestion remained as a suggestion only and nothing substantial turned out on the basis of such suggestion. having regard to the entire evidence on record, the learned sessions judge rightly came to the conclusion that a1 was guilty. but the only question that remains for our consideration would be, the last argument of the learned counsel for the appellants, guilty of what offence 25. the learned sessions judge, after acquitting a2, convicted a1 for the offence of murder u/s. 302 ipc. from the evidence of all the eye-witnesses, there has never been a clinching evidence against a2. their only feeble statement was that they saw another person running away, presumably a2. 26. from the evidence of doctors, pw9, who had examined the deceased prior to his death, and pw 10, who conducted post-mortem examination on the dead body of the deceased, the deceased did receive multiple incised and stab injuries and according to the opinion of both the doctors, injuries 3 and 14 were fatal in nature and the deceased must have died due to shock and haemorrhage due to those multiple injuries. but in view of the fact that a2 has been acquitted, it cannot be said on the basis of the evidence of pws. 2 to 4 that it was a1 who inflicted those injuries on the deceased. after the acquittal of a2, section 34 of ipc stands excluded and a1, if at all, would be liable for the injuries inflicted by him. though it cannot definitely be said that the fatal injuries were caused by him, it can safely be concluded that he caused at least the other injuries, which are of very grievous in nature, since according to pws. 2 to 4, a1 was holding a knife in his hand and the deceased had fallen down struggling for life. 27. having regard to these circumstances, we are of the opinion that the appellant/a1 would not be guilty for the offence u/s. 302 ipc, but he would definitely be guilty for voluntarily causing grievous hurt by dangerous weapon, like knife, punishable under section 326 ipc. for this proposition, we are supported by the decision of the supreme court reported in baul v. the state of u.p., : 1968crilj872 , in which it is held as under (at page 730 of air) :- 'no doubt, the original prosecution case showed that sadhai and ramdeo both hit the deceased on the head with their lathies. one is tempted to divide the two fatal injuries between the two assailants and to hold that one each was caused by them. if there was common intention established in the case the prosecution would not have been required to prove which of the injuries was caused by which assailant. but when common intention is not proved the prosecution must establish the exact nature of the injury caused by each accused and more so in this case when one of the accused has got the benefit of the doubt and has been acquitted. it cannot, therefore, be postulated that sadhai alone caused all the injuries on the hand of the deceased. once that position arises the doubt remains as to whether the injuries caused by sadhai were of the character which will bring his case within s. 302. it may be that the effect of the first blow became more prominent because another blow landing immediately after it caused more fracturers to the skull than the first blow had caused. these doubts prompt us to give the benefit of doubt to sadhai. we think that his conviction can be safely rested under s. 325 of indian penal code, but it is difficult to hold in a case of this type that his guilt amounts to murder simpliciter because he must be held responsible for all the injuries that were caused to the deceased. we convict him instead of s. 302 for an offence under s. 325, indian penal code and set aside the sentence of imprisonment for life and instead sentence him to rigorous imprisonment for seven years.' 28. as stated above, we have held that the appellant/a1 is guilty u/s. 326 of ipc. since pw5 the wife of appellant/a1, stated in her evidence that there were no disputes between her and her husband and they have been leading a normal life of husband and wife and after the incident, she has begotten another child through her husband (a1), we think it appropriate to convict the appellant under section 326 ipc and sentence him to suffer rigorous imprisonment for two years, and to pay a fine of rs. 500/- and in default of payment, to suffer simple imprisonment for three months. to that effect, the judgment of the trial court stands modified. 29. from the evidence of pws. 2 and 4, it is proved that a1 assaulted them with the knife and caused injuries to them. the learned sessions judge convicted the appellant u/s. 324 ipc for causing simple hurt to pw2 and sentenced him to suffer ri for one year. he also convicted the appellant u/s. 324 ipc for causing simple hurt to pw4 and sentenced him to suffer ri for six months. he further directed that all those sentences shall run concurrently. we confirm this part of the judgment of the learned sessions judge. 30. in the result, the appeal is partly allowed. the conviction and sentence passed by the learned sessions judge against the appellant/accused no. 1 for the offence punishable u/s. 302 of ipc are hereby set aside and instead, he is convicted for the offence punishable under section 326 of ipc and sentenced to undergo rigorous imprisonment for two years and to pay a fine of rs. 500/- and in default of payment of fine, to suffer simple imprisonment for three months. the conviction and sentences of the appellant under section 324 of ipc under charges 2 and 3 for causing simple hurt to pws. 2 and 4 are confirmed. the sentences passed against the appellant/a1 shall run concurrently. 31. appeal partly allowed.