A.V. Ravindra Babu, J
1. This Criminal Appeal, under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘the Cr.P.C’), is filed by the appellants, who are accused Nos.1 and 2 in Sessions Case No.206 of 2009, on the file of the Court of Principal Sessions Judge, Kurnool (for short, ‘the learned Sessions Judge’), challenging the judgment, dated 14.05.2010, where under the learned Sessions Judge found first appellant guilty of the offence under Section 304(Part-II) IPC as against original charge under Section 302 IPC and further found appellant No.2 not guilty of the offence under Section 302 R/w.34 IPC and further found the second appellant guilty for the offence under Section 324 IPC and accordingly convicted and sentenced the first appellant to undergo Rigorous Imprisonment for two years and to pay a fine of Rs.2,000/- in default to suffer Simple Imprisonment for two months for the offence under Section 304 (Part-II) IPC and further sentenced the second appellant to undergo Rigorous Imprisonment for six months and to pay a fine of Rs.500/- in default to suffer Simple Imprisonment for one month for the offence under Section 324 IPC. The learned Sessions Judge acquitted both the appellants under Sections 302 IPC and 302 R/w.34 IPC respectively.
2. The parties to this Criminal Appeal will hereinafter be referred to as described before the trial Court, for the sake of convenience.
3. Sessions Case No.206 of 2009 before the learned Sessions Judge, arose out of committal order in PRC No.107 of 2008 on the file of the Judicial Magistrate of First Class, Kurnool (for short, ‘the learned Magistrate’), relating to Crime No.192 of 2008 of Kurnool II Town Police Station.
4. The case of the prosecution, in brief, according to the averments in the charge sheet, filed by the Police pertaining to above Crime, is as follows:
A-1 and A-2 are residents of Saibaba Sanjeevaiah Nagar, Kurnool. LW.1 – S. Suseelamma is the sister of K. Venkatamma (for short, ‘the deceased’) and de-facto complainant in the case. LW.2 – Venkatesu and LW.3 – Ravi are the sons of the deceased and they are circumstantial witnesses. LW.4 – Shaik Hussainamma @ Hussain Bee is the daughter-in-law of LW.1 and circumstantial witness. LW.5 – J. Lalamma is daughter-in-law of the deceased and circumstantial witness.
LW.1 and the deceased used to live in the same locality in huts separately. A-1 and A-2 used to live by the eastern side hut of de-facto complainant. LW.1 is living with her 11 years old grandson Shakshavali and deceased was living with her youngest children LW.3 – Ravi and Arunamma. A-2 has two children aged about three years and one year respectively. Now and then deceased and A-2 used to quarrel with each other over the children issue.
On 04.07.2008 at about 08:30 p.m. deceased went to the house of LW.1 and admonished her son LW.3, as he went to attend the work without her knowledge in the morning and returned in the night at 07:30 p.m. A-2 misunderstood that the deceased admonished her, called the deceased, slapped on her cheek and dragged her by caught hold of her tuft. In the meantime, A-1 intervened and fisted the deceased in her stomach as a result, the deceased fell on a cot by shouting ‘Chastira’ (I died). When LW.1 went for her rescue, A-2 took a stick and beat on her head and caused bleeding injury. On hearing the cries of LW.1, neighbourers gathered and then the accused ran away. LW.4 went there and declared that the deceased died after observing her breath. LW.2 learnt about the murder of the deceased, about receipt of injuries by LW.1 through LW.5 and went to the scene of offence. He found the deceased lying on a cot and LW.1 with bleeding injury on her head. He took LW.1 to Government General Hospital, Kurnool for treatment. LW.14 – Inspector of Police, on receipt of the information from the Government General Hospital, Kurnool went there and recorded the statement of LW.1. On the basis of the statement of LW.1, he registered the same as FIR No.192 of 2008 for the offences under Sections 302 and 324 R/w.34 IPC and investigated into. On 05.07.2008, he seized bloodstained clothes of LW.1 in the presence of LW.7 – G. Rajasekhar and LW.8 – M. Maddilety under the cover of mahazar. He took photographs of the scene of offence and the body of the deceased through LW.6 – S. Shashi Kumar. He also conducted inquest over the dead body of the deceased in the presence of LW.7, LW.8 and LW.9 and also in the presence of LWs.1 to 4. He sent the dead body to LW.12 –Medical Officer for autopsy. On 05.07.2008, he arrested A-1 and A-2 and sent them for remand. He also got recorded the statements of LWs.1 to 4 under Section 164 Cr.P.C statement before the concerned Magistrate. LW.10 – the Medical Officer examined LW.1 - injured and issued wound certificate stating that the injuries are simple in nature. LW.11 – Scientific Officer, who examined the material objects, opined that in the material objects there were no poisonous substances. LW.12, the Medical Officer conducted post-mortem examination over the dead body of the deceased and opined that the deceased died due to blunt injury on the abdomen associated with the head injury. Hence, the charge sheet.
5. The learned Magistrate took cognizance of the case, numbered it as PRC No.107 of 2008 and after completing the formalities under Section 207 Cr.P.C, committed the case to the Court of Session and thereafter it was numbered as S.C. No.206 of 2009.
6. After appearance of the accused before the learned Sessions Judge, by following the procedure under Section 228 Cr.P.C, charges under Sections 302 IPC and 302 R/w.34 IPC were framed against A-1 and A-2 respectively and further a charge under Section 324 IPC was framed against A-2, for which they denied the offences, pleaded not guilty and claimed to be tried.
7. During the course of trial, on behalf of the prosecution, PWs.1 to 12 were examined and Exs.P-1 to P-19 were marked. Further, Ex.C-1 was marked.
8. After closure of the evidence of the prosecution, accused were examined under Section 313 Cr.P.C with reference to the incriminating circumstances appearing in the evidence let in for which they denied the incriminating circumstances and reported no defence evidence and stated that the Advocate by name Venkata Swamy got foisted a false case against them.
9. The learned Sessions Judge, on hearing both sides and after considering the oral and documentary evidence on record, found the first accused guilty of the offence under Section 304(Part-II) IPC, culpable homicide not amounting to murder, and further the second accused guilty of the offence under Section 324 IPC and accordingly convicted and sentenced them, as above.
10. Being aggrieved by the judgment of the learned Sessions Judge in convicting and sentencing the appellants, as above, they filed this Appeal.
11. Now, in deciding this Criminal Appeal, the points that arise for consideration are:
1) Whether the prosecution before the Court below proved that on 04.07.2008 at 08:30 p.m. A-1 fisted the deceased in her stomach and caused her death in the manner as alleged?
2) Whether the prosecution has proved before the Court below that on 04.07.2008 A-2 caused simple injury on the head of PW.1 with a stick?
3) Whether there are any grounds to interfere with the judgment of the learned Principal Sessions Judge?
12. POINT Nos.1 to 3: Sri Shaik Ismail, learned counsel, representing Sri C. Sharan Reddy, learned counsel for the appellants, would contend that the Court below went on to convict the accused basing on the interested testimony of PW.1 and PW.4. PW.2 and PW.3, own sons of deceased, did not support the case of the prosecution. All the mediators to the inquest report did not support the case of the prosecution. There were discrepancies with regard to the overt acts attributed against A-1. If really, the incident was happened in the manner as alleged, why PWs.2 and 3, sons of the deceased, did not interfere in the incident? The defence theory is that the deceased used to consume toddy and used to fell down and the contents of post-mortem report reveals that the partially digested food in the stomach of deceased was giving smell like toddy. There was no registration of the FIR immediately after the incident. On the other hand, Police, on receipt of the information proceeded to the scene of offence. So, Ex.P-1 was hit under Section 161 Cr.P.C. There is abnormal delay in registration of the FIR. According to the evidence of PW.9, the injuries on PW.1 could be possible by a simple fall on the ground. The defence theory that the deceased consumed toddy heavily and fell down and received injuries has support from the contents of the post-mortem report. The cause of death was also said to be the injury on her head. Prosecution did not explain as to why the deceased received injury on the head. So, the defence theory is quite probable. Overlooking the contentions raised by the learned defence counsel before the Court below and without analyzing the evidence in proper perspective, the Court below convicted the accused on erroneous reasons as such the Appeal is liable to be allowed by setting aside the judgment of the trial Court.
13. Sri Y. Jagadeeswara Rao, learned counsel, representing learned Public Prosecutor, appearing for the respondent-State, would contend that the Police basing on an anonymous telephone call only proceeded to the scene of offence and learnt that already PW.1 was taken to Government Hospital, Kurnool as such PW.12 proceeded to the Hospital and recorded her statement under Ex.P-1. Thereafter, he registered the FIR and forwarded copy of the FIR to the concerned Court and to all officers. For the reasons best known, PWs.2 and 3, the own sons of the deceased, did not support the case of the prosecution. They were won over by the accused. PW.1, sister of the deceased, supported the case of the prosecution. She is the direct witness and her evidence is fully convincing. PW.4 supported the case of the prosecution and the presence of the accused at the scene of offence. The medical evidence proves that on account of attack made by A-1, the spleen of deceased was ruptured. Accused could not elicit any favourable answers during the course of cross-examination of the Medical Officer. The presence of injuries on PW.1 quietly establishes her presence at the scene of offence. The learned Sessions Judge recorded cogent reasons and took care to analyze the evidence on record. As regards the charges under Sections 302 IPC, 302 R/w.34 IPC and 324 IPC, after analyzation of the evidence thoroughly the learned Sessions Judge came to a conclusion that the offence falls under Section 304(Part-II) IPC against A-1 and 324 IPC against A-2 and as such the judgment of the trial Court is liable to be confirmed.
14. PW.1 is no other than the de-facto complainant. Her evidence in substance is that the deceased is her own sister. She (PW.1) is a servant maid. Deceased used to work as servant maid. Deceased was residing in her neighbouring house. Husband of the deceased is no more. The deceased was blessed with 7 children. Ravi – LW.3 and one Arunamma, who are son and daughter of the deceased, are living with her. She knows A-1 and A-2. A-1 is the brother-in-law of A-2 and both used to live in one and the same house adjacent to her house at Kurnool. There were some differences between the accused and the deceased in connection with the children disputes. The deceased died about one year seven months and 17 days back. On the date of incident at about 08:30 p.m., she is at her house. At that time, the deceased was abusing her son LW.3 – Ravi. Considering that the deceased was abusing the accused, A-2 came there and slapped the deceased on her cheek and then A-1 fisted the deceased in her stomach and also kicked her. When she intervened in the said incident, A-2 beat her with a stick on her head and thereafter both the accused fled away. The deceased died on account of the incident. One Venkatesu, elder son of deceased, took her to Government General Hospital, Kurnool. When she was in the Hospital, CI of Police came there, examined her and recorded her statement and she narrated the events to him. She put her thumb impression beneath her statement. Ex.P-1 is her statement which contains her thumb impression.
15. PWs.2 and 3 are no other than the sons of the deceased. PW.2 deposed before the Court that more than one year ago around about 08:00 p.m. LW.5 – Lalamma came to him and informed that his mother fell down and she was unable to talk anything. Then himself and his younger brother went to the house of their mother and found her dead on a cot. He came to know that his mother fell and died. Police did not examine him. Prosecution got declared PW.2, son of the deceased, as hostile witness and suggested to him that he stated before Police as in Ex.P-2 (161 Cr.P.C statement) and that he is deposing false, for which he denied.
16. PW.3, another son of the deceased, deposed that he does not know anything about the case. About one and half year back, his mother died. On the date of incident, he returned to home from work place. He came to know about the death of his mother through LW.5 – Lalamma. Then, he, PW.2 and LW.5 went to the house of his mother and saw her dead body. Police did not examine him. Prosecution got declared him as hostile and during cross-examination, he denied that he stated before Police as in Ex.P-3.
17. Coming to the evidence of PW.4 – Hussain Bee, she supported the case of the prosecution. According to her, about one and half year back around 08:30 p.m. deceased and A-1 and A-2 quarreled and at that time she (PW.4) was preparing food at her house. On hearing the cries, she went to the house of the deceased and found her dead. Thereafter, she informed the death of Venkatamma, her mother-in-law, to PW.1. She saw head injury on her mother-in-law. PW.1 informed her that A-1 and A-2 attacked her and the deceased. Later, PW.1 was taken to the Hospital for treatment. She was examined by the Police.
18. PW.5 – Lalamma deposed that about one and half year ago, while she was in her parents’ house, she came to know that her mother-in-law – Venkatamma fell down and coming to know the same, she went to her house and found her lying on a cot. Thereafter, she went to the house of PW.2 and PW.3 and brought them to the house of the deceased. She does not know as to how she died. Prosecution got declared her as hostile and during cross-examination, she denied that she stated before Police as in Ex.P-4 (161 Cr.P.C statement) and that she is deposing false.
19. PWs.6, 7 and 8 are the mediators. According to PW.6, Police did not call him to act as mediator for any panchanama. No panchanama was conducted in his presence. Exs.P-5 and P-6 are his signatures. In the year 2008, Police obtained his signatures as above. Prosecution got declared him as hostile and during the cross-examination, he denied that Police conducted panchanama for seizure of bloodstained clothes from PW.1 and he was present by then and he signed on Ex.P-5 and that he was also present at the inquest over the dead body of the deceased and that he is deposing false.
20. PW.7, another mediator, also did not support the case of the prosecution. He admitted his signatures under Exs.P-7 and P-8. Prosecution got declared him as hostile and during cross-examination he denied that he was present at the time of conducting panchanama for seizure of blood stained clothes from PW.1 and in that connection he put his signature i.e., Ex.P-7 and that further he was also present at the time of inquest panchanama over the dead body of the deceased and in that connection he put his signature under Ex.P-8 and that he is deposing false.
21. PW.8, another panch witness, also did not support the case of the prosecution but he admitted his Ex.P-9 signature. Prosecution cross-examined him on the ground that he turned hostile. During cross-examination he denied that he was present at the time of inquest over the dead body of the deceased and after completion of inquest he put his signature under Ex.P-9.
22. PW.9 is the Medical Officer, who examined PW.1 on 04.07.2008 at 10:30 p.m. and found a laceration of 2 x 1 c.m. over the parietal region of skull and pain over back of chest and he issued Ex.P-10 wound certificate.
23. PW.10 is the other Medical Officer, who conducted autopsy over the dead body of the deceased and issued final opinion, Ex.P-12, to the effect that the deceased died due to blunt injury on abdomen associated with head injury.
24. PW.11 is the photographer whose evidence is to the effect that on 05.07.2008 at about 07:30 a.m. at the request of Circle Inspector of Kurnool II Town Police Station, he went to the house of the deceased and took photographs over the dead body of the deceased. Ex.P-13 is the bunch of three positive photographs.
25. PW.12 is the Investigating Officer, who has spoken about the investigation and the relevant evidence of PW.12 will be discussed hereinafter.
26. During the course of cross-examination PW.1, denied a suggestion that for the first time, she deposed before this Court that the deceased was working as servant maid. She further denied a suggestion that the deceased Venkatamma was habituated to take toddy and used to fell down in the intoxicating condition frequently and that she used to be brought to her house in such intoxicating condition. As on the date of incident, she (PW.1) was servant maid in some of the houses located near by Munsif Court, Kurnool. Her son Rasool Miya worked as an employee in the office of Sri Venkata Swamy, Advocate, Kurnool till his death. Office of the said Advocate is in the vicinity of the Munsif Court, Kurnool. The children’s disputes took place for about three times earlier to this incident. The incident against the deceased had taken place in front of her house. None of the neighbourers witnessed the incident happened against the deceased. She stated to the Police that A-1 kicked the deceased with legs in her abdomen. In his statement recorded by the Police, she stated to the Police that A-1 beat deceased with hand. On account of the A-1 beating, the deceased fell on a cot, which was in front of her (PW.1) house, saying that she was being killed. The said cot was not made of iron pipes but it was made with navaru. The said navaru was woven to iron frame. Neither she nor the sons of the deceased informed abut the incident to the Police immediately. Witness volunteers that due to fear it was not done. She further stated in cross-examination that she stated before the Magistrate that the deceased was taken to a private Hospital, Kothapeta and the doctor therein declared the deceased dead and that soon after the doctor declared her death, she went to the police station and gave report and that the Police referred her to Government General Hospital, Kurnool. She did not state to Magistrate that one Venkatesu, who is the son of the deceased, took her to GGH, Kurnool. She denied that the overt acts attributed by her against A-1 and A-2 are all false and that she is deposing false.
27. As seen from the evidence of PWs.2 and 3, admittedly, they turned hostile to the case of the prosecution. Here the contention of the appellants is that when the kith and kin of the deceased like PW.2 and PW.3 did not support the case of the prosecution, to convict them basing on the interested testimony of PW.1 and PW.4 is not tenable. It is to be noticed that the hostile attitude exhibited by PWs.2 and PW.3 is quietly proved by the prosecution by eliciting the answers from the evidence of PW.12, the Inspector of Police, to the effect that PWs.2 and PW.3 stated before him as in Exs.P-2 and P-3 respectively. Apart from this, PW.12 also testified that PW.5 stated before him as in Ex.P-4. So, the hostility of PW.2 PW.3 and PW.5 is quietly proved by the prosecution. If one has looked into the evidence of PW.2, PW.3 and PW.5, absolutely, they were not direct witnesses to the occurrence. Their so called version under Exs.P-2 to P4 is that they having come to know about the death of the deceased rushed to the house of deceased and found her dead body on a cot. So, PW.2 and PW.3, the children of the deceased, and PW.5 are only hearsay witnesses to the effect that having come to know about the death of their mother, they rushed to the house and found the dead body of the deceased. The evidence of PW.2, PW.3 and PW.5 as if they came to know that her mother fell down and died is nothing but deviating from 161 Cr.P.C statement and introducing wholly new things. When the testimony of PW.2, PW.3 and PW.5 was impeached by the learned Additional Public Prosecutor that they are deposing false to help the accused, virtually the defence counsel did not cross-examine PW.2, PW.3 and PW.5. So, simply because PW.2, PW.3 and PW.5 who are hearsay witnesses, did not support the case of the prosecution and simply because PW.2, PW.3 and PW.5, for the reasons best known to them, sailed with the theory of the defence, the evidence of PW.1, an injured witness, on that count cannot be thrown out. So, the proper course is to scrutinize the evidence of PW.1, the injured witness, and PW.4 another witness.
28. As seen from the evidence of PW.4, she testified the fact that at about one and half years back around 08:30 p.m. the deceased – Venkatamma, A-1 and A-2 quarreled with each other and by then she was preparing food and, on hearing the cries, she went to the house of the deceased and found Venkatamma dead and then PW.1 told her that A-1 and A-2 attacked her and the deceased. It is the evidence of PW.1 that there is a whisper in Ex.P-1 statement that PW.4, after occurrence came to the spot and confirmed that the deceased died by checking her breath. So, with regard to the case of the prosecution that, after the incident, PW.4 came there and confirmed the death of the deceased, it is quietly proved by the prosecution.
29. Now, admittedly, according to Ex.P-1, statement of PW.1, there was a whisper that A-1 fisted in the stomach of her younger sister. The evidence of PW.1 before the Court below is also that A-1 fisted the deceased. It appears that PW.1 stated before the Investigating Officer that A-1 kicked the deceased. During cross-examination, PW.1 admitted that she stated before Police that A-1 kicked the deceased. The above discrepancy is not at all fatal to the case of the prosecution. When the overt act attributed against A-1 in Ex.P-1 is that he fisted the deceased and when it was spoken to by PW.1, absolutely, the testimony of PW.1 had corroboration from the contents in Ex.P-1. The above said discrepancy cannot be taken as a serious one which affects the case of the prosecution.
30. Now, I would like to deal with the contention of the accused that Ex.P-1 is hit under Section 161 Cr.P.C. The basis for the appellants to put forward such a contention appears to be that according to the evidence of PW.12, the Investigating Officer, he was informed that a murder took place near Fathima Darga in Saibaba Sanjeevaiah Nagar, Kurnool and then he made a G.D. entry, left the Police Station along with a Home Guard and reached the said vicinity and found the dead body of a woman. He verified the identity of the deceased and came to know that PW.1 was shifted to GGH Kurnool. So, he rushed there and recorded the statement of PW.1. Learned defence counsel cross-examined PW.12, who deposed that the person who made the phone call to him on 04.07.2008 did not disclose his identity and he did not disclose as to from which place he was making such a call. So, the information that was received by PW.12 through phone call was nothing but vague and it was bereft of necessary details with regard to identity of the informant, even the identity of the deceased. Under the circumstances, the so called vague information cannot be taken as first information. So, the first information was no other than Ex.P-1 statement of PW.1. So, the contention of the appellants that Ex.P-1 is hit under Section 161 Cr.P.C deserves no merit.
31. Now, as evident from the evidence of PW.12, having recorded the statement under Ex.P-1, he returned to the Police Station and registered the Crime No.192 of 2008 and issue FIR. Ex.P-14 is the FIR. As seen from Ex.P-14, admittedly, it was received by the learned Magistrate at 01:10 a.m. on 05.07.2008 within one and half hours of registration of the FIR without any delay. There was prompt registration of FIR and prompt forwarding of the same to jurisdictional Magistrate immediately after its registration. So, it altogether excludes any probabilities or possibilities for any tutoring and concoctions or deliberations. Hence, the contention of learned counsel for the appellants that there was delay in registration of the FIR cannot stand to any reason.
32. Now, admittedly, according to the cross-examination part of PW.1, her statement was recorded before the jurisdictional Magistrate, wherein she stated that after the attack, the deceased was taken to a private hospital where the doctor declared her died. It is to be noticed that PW.1 was a rustic witness, who was not able to put her signature. She does not know how to sign and she just put her thumb impression. Insofar as Ex.P-1 is concerned, recorded by PW.12 from PW.1, there was certification by the duty doctor that she was in fit state of mind while recording the statement. The presence of the Medical Officer and his endorsement on Ex.P-1 altogether excludes any probability or tutoring or fabrication of Ex.P-1. The contents of Ex.P-1 were read over to PW.1 as per the endorsement made by PW.12. The fact that according to PW.1 in cross-examination after the incident the deceased was taken to a private hospital where she was declared as dead would not throw any suspicious circumstance in the case of the prosecution. In fact, PW.1 was no other than the sister of the deceased. When the deceased was subjected to attack and lost her breath in the attack, the natural reaction of PW.1 would be to take the deceased to hospital. So, her act in taking the deceased to hospital and bringing back her later to the house cannot be taken as a circumstance to disbelieve the case of the prosecution. Though there was an answer from PW.1 that she stated to the Magistrate that she went to the Police Station and from there she was referred to the Hospital, admittedly, she was a rustic woman. The testimony of PW.12 was not at al impeached during cross-examination suggesting that he recorded any statement prior to Ex.P-1 in the Police Station from PW.1. On the other hand, it was suggested to him that he did not record Ex.P-1 and it was manipulated. The above said suggestion put to PW.1 is nothing but baseless as Ex.P-1 contains an endorsement even from the Medical Officer. So, the accused cannot take advantage for the minor discrepancies in the case of the prosecution as to whether the deceased was taken to the hospital or not etc. In my considered view, Ex.P-1 does not show any doubtful circumstances and the theory of the defence that Ex.P-1 was fabricated to suit the case of the prosecution cannot stand to any reason.
33. Now, turning to the contention that PWs.5 to 7, mediators, turned hostile to the case of prosecution, the said fact does not support the theory of the defence in any way. Absolutely, PWs.5 to 7 had no basis whatsoever to simply put the signatures on papers on mere asking by the Police. PW.12 testified that he recovered the bloodstained clothes of PW.1 and further conducted inquest over the dead body of the deceased in the presence of PWs.5 to 7. So, it is a case where, for obvious reasons, they turned hostile to the case of the prosecution. The Investigating Officer had no necessity to fabricate the inquest panchanama and panchanama for seizure of blood stained clothes of PW.1. The evidence of PW.12 is totally convincing with regard to the fact that by securing the panch witnesses on 05.07.2008 at 06:30 p.m. he seized bloodstained clothes of PW.1 in the presence of PW.7 and PW.8. Apart from this, his evidence is also quite clear that he secured the mediators i.e., PWs.6 to 8 and further PWs.1, 2, 3 and 4 and conducted inquest over the dead body of the deceased on 05.07.2008 at 07:30 a.m. Nothing is elicited during the cross-examination to disbelieve his testimony in this regard except by giving a suggestion that he fabricated the investigation. The Investigating Officer like PW.12 has no necessity to fabricate inquest panchanama and panchanama for seizure of bloodstained clothes. The fact that PW.1 received bleeding injuries is not in dispute and PW.9, the Medical Officer, clearly deposed the same. It is also testified by PW.1. The defence theory before PW.9 the Medical Officer is that the injuries of PW.1 could be possible by a fall on the ground. Nothing was suggested to PW.1 that she received injuries by fall on ground. So, the ocular evidence of PW.1 with regard to receipt of injuries in the hands of A-2 is corroborated by the evidence of PW.9, coupled with Ex.P-10 wound certificate.
34. Now coming to the contention of the defence theory that the deceased used to consume toddy heavily and used to fell as such on the date of incident, she consumed toddy heavily and died, this Court would like to make it clear that the basis for the accused to raise such a contention is the contents of the post-mortem report. According to Ex.P-11 – post mortem report, stomach contained about 500 grams of semi digested food with toddy like smell. Now, it is necessary to look into the evidence of PW.10. The evidence of PW.10 insofar as the injury regarding the spleen is that injury No.5 is that lateral and inferior border of spleen is showing contusion and cut section shows contusion of the outer end with semi clotted blood. His opinion is that cause of death is due to blunt injury on abdomen associated with head injury. In cross-examination, he deposed that injury No.5 was not associated with any fracture of ribs or any injury to the internal organs other than spleen. Spleen becomes enlarged and softened and brittle on account of decease also. He deposed that just because of contraction of muscle there was no possibility of rupture to the spleen. He found a contusion over the spleen at its lateral and lower end. On cut section, there was presence of semi clotted blood. He categorically clarified that any blunt force caused over the spleen area may cause the vasovagal shock and can lead to sudden death of the individual. He is not aware that rupture to the spleen will be caused because of contraction over abdominal muscle. Rupture of enlarged spleen is possible spontaneously in disease process. He did not probe into the matter pertaining to toddy like smell in the stomach contents of the deceased.
35. It is to be noticed that PW.10 duly preserved viscera for chemical analysis and forwarded to RFSL, Kurnool and findings are that there is no poisonous substance. Absolutely, the accused miserably failed to elicit favourable answers from the mouth of PW.10 that deceased consumed toddy. The evidence of PW.10 that the semi digested food gave toddy like smell does not mean that the deceased consumed toddy. Even otherwise, the clarification that is obtained from the mouth of PW.10 during the cross-examination reveals that it was only on account of blunt force caused over the spleen there was a possibility for contusion and clotting of the blood. In my considered view, the accused did not elicit anything from the mouth of PW.1, who was the sister of the deceased that the deceased was suffering with any ill-health relating to abdominal issues. Accused cannot take an advantage that the deceased used to consume toddy and used to fell down. No such probabilities were elicited from the mouth of PW.1. Even the evidence of PW.10, during the cross-examination, reveals that on account of blunt force used on the spleen there was contusion over the spleen on its lateral end and lower end and further cut section shows the presence of semi clotted blood. In my considered view, the contention of the appellants that the deceased was suffering with some disease and on that day consumed toddy excessively and fell down and died cannot stand to any reason. Apart from this, it was elicited from the cross-examination of PW.1 that soon after the attack made by A-1, the deceased fell on a cot which was with navaru and navaru was woven to iron frame. In such circumstances, there was every possibility that the deceased might have received injuries to her head. The answers that were elicited from the mouth of PW.1 suggest a theory that the deceased might have received injuries on the head on account of fall on the cot.
36. Virtually, PW.1 had no animosity so as to implicate the accused when the deceased died on account of any disease. The defence of the accused that at the instance of one Venkata Swamy, Advocate, they were falsely implicated in the case cannot stand to any reason. As pointed out, the very presence of injury on the person of PW.1 fully supports the case of the prosecution with regard to the attack made by the accused. In my considered view, though PWs.2 and 3 turned hostile but the evidence of PWs.1 and 4 coupled with the medical evidence available on record proves the fact that A-1 on the fateful day attacked the deceased by fisting in her abdomen which is a sensitive part as a result of which the deceased succumbed to death. The evidence on record further proves that A-2 made an attack on PW.1 with a stick on her head and caused bleeding injury.
37. Learned Principal Sessions Judge, Kurnool considering the fact that incident happened in a spur of moment, analyzed the evidence in proper perspective and made a finding that the act committed by A-1 would not come under the purview of the matter but it would amount to exceptions provided under Section 300 IPC as such the offence would fall under Section 304(Part-II) IPC i.e., culpable homicide not amounting to murder. In fact, the learned Sessions Judge took a lenient view and imposed Rigorous Imprisonment for two years only on appellant No.1 and he further took a lenient view as regards appellant No.2 and sentenced her to suffer Rigorous Imprisonment for six (6) months. Viewing from any angle, appreciation of evidence by the learned Sessions Judge is on sound reasoning and as such I am of the considered view that absolutely there are no grounds to interfere with the judgment of the trial court.
38. In the result, the Criminal Appeal is dismissed confirming conviction and sentence imposed against the appellants/accused in Sessions Case No.206 of 2009, dated 14.05.2010, on the file of the Court of Principal Sessions Judge, Kurnool.
39. The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the judgment of this Court including the trial Court record, if any, to the Court below on or before 13.03.2023 and on such certification, the trial Court shall take necessary steps to carry out the sentence imposed against the appellants/accused Nos.1 and 2 in S.C. No.206 of 2009, dated 14.05.2010, and to report compliance to this Court. A copy of this judgment be placed before the Registrar (Judicial), forthwith, for giving necessary instructions to the concerned Officers in the Registry.
Consequently, Miscellaneous Applications pending, if any, shall stand closed.
