Bahurupula Gangaram, v. The State Of Andhra Pradesh,

HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY AND HON'BLE SRI JUSTICE M.S.K.JAISWAL CRIMINAL APPEAL No.43 of 2011 Date:05.7.2017 Between:

Bahurupula Gangaram ..... Appellant And:

State of A.P., reptd by Public Prosecutor, Hyderabad.

.....Respondent Counsel for the appellant: Mrs. C.Vasundhara Reddy Counsel for the respondent: Public Prosecutor (TS) The Court made the following:

JUDGMENT: (per Hon'ble Sri Justice C.V.Nagarjuna Reddy) The sole accused in Sessions Case No.244 of 2010 on the file of the learned Sessions Judge, Nizamabad filed this Criminal Appeal against judgment, dated 11.01.2011, whereby he was convicted for the offence under Section-302 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.1,000/-, in default, to suffer simple imprisonment for one year.

The case of the prosecution, in brief, is that on 04.12.2009 at about 1 pm., P.W-16 has received a reliable information over telephone about a murder that took place at Pipri Village; that he rushed to the said Village, where he received a complaint from P.W-1 stating that on 03.12.2009 at about 5 pm., her husband (the deceased) and her brother-in-law (the appellant) quarrelled with each other in a drunken condition; that the appellant scolded the deceased stating that he was not attending to any works and used to beat the family members in drunken condition and also threatened to kill him by that time of the next day; that again, on 04.12.2009, in the morning hours, the deceased picked up a quarrel with P.W-1 and tried to beat her, due to which, in fear, she went to the house of one Waddera Allepu Rajanna; that on the demand of the deceased, P.W-2 was preparing food; that in the meantime, P.W-1 went into her

house and at that time, the appellant came there with a butcher's knife, caught hold of the collar of the shirt of the deceased with one hand, abused him as to why he was beating all the family members, dragged him outside on the road and stabbed him with a butcher's knife in the stomach four times, resulting in his instantaneous death; and that later, the appellant took the dead body of the deceased into his house and laid it on a mat.

That on receipt of the complaint, on the instructions of P.W-16, P.W-14 registered a case in Crime No.362 of 2009 under Section-302 I.P.C., issued express F.I.Rs to all concerned, sent the Case Diary file to P.W-16 for further investigation; and that, during the course of investigation, P.W-16 examined and recorded the 161 Cr.P.C. statement of P.W-1. That on receipt of information, P.W-15 rushed to the scene of offence, took up further investigation, verified the investigation done by P.Ws.14 and 16, secured the presence of the witnesses-P.Ws.1 to 6 and 11, L.W-5-Bandi Yellakka and L.W.12-Vannela Pratap, examined P.Ws.2 to 5 and L.W-5 and recorded their statements under Section-161 Cr.P.C., got the photographs of the scene of offence and the dead body of the deceased taken by P.W-6, examined and recorded the statement of P.W-6 under Section161 Cr.P.C., conducted panchanama of the scene of offence in

the presence of P.W-11 and L.W.12, prepared a rough sketch of the scene of offence and seized the blood stained mat piece, control mat piece, blood stained earth and control earth from the scene of offence in their presence. Further, P.W-15 held inquest over the dead body of the deceased and seized the blood stained clothes of the deceased in the presence of two mediators. That upon receipt of requisition, P.W-13 conducted autopsy over the dead body of the deceased and opined that the death was due to shock and hemorrhage as a result of multiple grievous injuries to vital organs such as heart and liver. That on 16.12.2009, at about 8 am., on reliable information, P.W-15 along with his staff rushed to Pipri Village, apprehended the appellant, who voluntarily confessed to have committed the offence. After investigation, P.W-15 filed charge sheet. As the plea of the appellant was one of denial, he was made to stand trial, during which, the prosecution examined P.Ws.1 to 16, marked Exs.P-1 to P-26 and produced M.Os.1 to

9. On behalf of the appellant, no evidence was adduced. On appreciation of the oral and documentary evidence, the lower Court has convicted and sentenced the appellant as stated supra.

At the hearing, Mrs. C.Vasundhara Reddy, learned counsel for the appellant, submitted that with the alleged eye-witnesses

and other material witnesses, such as P.Ws.1 to 5 and 7 to 10, turning hostile, the prosecution failed to prove the guilt of the appellant beyond reasonable doubt and that the lower Court has erroneously convicted the appellant in the absence of proper evidence establishing his guilt. The learned counsel alternatively submitted that the circumstances of the case suggest that as the deceased had beaten P.Ws.1 and 2 and abused the appellant, in a grave and sudden provocation, the appellant attacked the deceased with a butcher's knife and that therefore, the case falls under Exception-1 to Section-300 IPC and at the most, he may be liable for conviction under Part-I of Section-304 I.P.C. Learned Public Prosecutor for the State of Telangana opposed the above submissions and sought to support the judgment of the lower Court.

We have carefully considered the submissions of the learned counsel for the parties with reference to the record. To recapitulate, the case of the prosecution is that the deceased was addicted to alcohol and was beating his wife (P.W-1) and his mother (P.W-2) without attending to the coolie work properly; that on 03.12.2009, at about 5 pm., the appellant and the deceased quarrelled with each other; that the appellant threatened the deceased that he will kill him next day by that time; that on the following day, i.e., on 04.12.2009,

when the deceased picked up a quarrel with P.W-1 and tried to beat her, she went to the house of one Waddera Allepu Rajanna; that on the demand of the deceased, P.W-2 was cooking food; that during that time, P.W-1 came back to her house and saw the appellant coming there with a butcher's knife and he caught hold of the collar of the shirt of the deceased with one hand, abused him as to why he was beating all the family members and so saying, dragged him outside onto the road and stabbed in his stomach four times resulting in his death on the spot. It is the further case of the prosecution that the appellant has taken the dead body of the deceased into his house and laid it on a mat. Though all the eye-witnesses have turned hostile, the evidence of P.W-1 assumes relevance. In her chief-examination, P.

W-1 supported the case of the prosecution to the extent that her husband was addicted to alcohol and most of the time he was under its influence; that the deceased used to beat her and her mother-in-law (P.W-2) frequently. She has further deposed that on the date of the incident, at about 3.30 pm., while she was doing coolie work in the agricultural fields, a lady belonging to Erukula community came there and informed that her husband was murdered by the appellant. But, in her 161 Cr.P.C. statement, she claimed to be an eye-witness to the occurrence.

Though the evidence of P.W-1 varies with her statement recorded under Section-161 Cr.P.C., there was no crossexamination by the defence counsel on the veracity of her statement that she was informed by a woman, when she was doing coolie work in the agricultural fields, that it is the appellant who killed the deceased.

In Ex.P-5-report given by her, P.W-1 has categorically stated what the prosecution has mentioned in the charge sheet. Ex.P-2 is the relevant portion of Ex.P-5, wherein she has graphically described as to how the incident has taken place in her presence.

P.W-3 has admitted that he scribed Ex.P-5-report. He, however, added that he prepared the said report based on the rough note prepared by the Police. Ex.P-1-the relevant portion of 161 Cr.P.C. statement of P.W-1 is on similar lines to the contents of Ex.P-5-report. P.W-1 has not denied the contents of the statement recorded under Section-161 Cr.P.C. Though P.W1 turned hostile, as she did not claim to be an eye-witness to the incident, she nevertheless stated that as per the information received by her, the appellant has killed the deceased. She has, however, not denied the fact that at her instance Ex.P-5-report was drafted and that, she has affixed her thumb impression therein. She has also specifically not denied the contents of Ex.P-

5. These circumstances would clearly show that though the incident has occurred in her presence, considering the fact that the appellant is no other than her own brother-in-law, P.W-1 did not support the case of the prosecution. But, the aforementioned circumstances are sufficient to prove the involvement of the appellant in the murder of the deceased. Added to this, Ex.P-22 is the relevant portion of the confession and seizure panchanama, under which M.O.8-kinfe and M.O.9polyester full shirt belonging to the appellant were seized from his house.

P.W-12-Village Revenue Officer of Pipri Village-a panch witness to Ex.P-22, has supported the case of the prosecution and clearly deposed that in his presence, the appellant agreed to show the knife used in commission of the offence, went inside his house and brought a knife stating that the same was used in commission of the offence. He has further deposed that the appellant has brought one shirt which was seized by the Police. He has also identified MO-8-knife and M.O-9-shirt during his evidence. Nothing significant was elicited from the crossexamination of P.W-12 except a suggestion that he was speaking falsehood at the instance of the Police.

Ex.P-26-F.S.L. report reveals that human blood was detected on M.Os.1 to 6, which includes item No.6 mentioned therein correlated to M.O-9-shirt of the appellant. Learned counsel for the appellant submitted that the blood group on M.O-9-shirt has not been indicated in Ex.P-26. In our opinion, on the facts of the present case, where a single murder has taken place, non-determination of the blood group on M.O9 by the Forensic Science Laboratory does not weaken the case of the prosecution.

Significantly, during the 313 Cr.P.C. examination, in answer to question No.7 to the effect that P.W-12 has deposed that the appellant went inside the house, brought M.O-8 knife and M.O-9-shirt and the Police seized the same, the appellant did not offer any explanation except stating that the same is not true. Similarly, in answer to question No.13 to the effect that P.W-15 deposed that M.Os.8 and 9 were seized in the presence of P.W-12 and L.W-15-J.Kamalakar, the appellant did not offer any explanation except flatly denying the same. All these circumstances would clearly establish that it is only the appellant who has done away with the life of the deceased and the lower Court has rightly held him guilty of killing the deceased.

As regards the alternative submission of the learned counsel for the appellant, it is the version of the prosecution that as the deceased had become a menace to the entire family, the appellant killed him. Ex.P-5-report reveals that on the date of the incident, the deceased had quarrelled with his wife- P.W1 and when he tried to beat her, she ran away to the house of one Waddera Allepu Rajanna in fear; that later, he started quarrelling with his mother-(P.W-2); that P.W-1 came back to her house; and that, at that time, the appellant had arrived at the scene and questioned the deceased as to why he has been beating everyone. That so saying, the appellant got enraged, dragged the deceased outside onto the road and stabbed him with a butcher's knife three or four times in the stomach. Even in Ex.

P-22-confessional statement, the appellant stated that prior to the incident, he saw the deceased quarrelling with P.Ws.1 and 2, got angry at his conduct and killed him. These circumstances would, thus, reveal that the appellant might not have had the pre-meditated intention of killing the deceased, but due to the grave and sudden provocation caused by the deceased by beating P.Ws.1 and 2, the appellant appeared to have killed the deceased.

It is significant to note that the appellant's house is about 30 yards from the house of the deceased and evidently, the

appellant has gone to his house seething in anger and brought a butcher's knife from his house, with which he killed the deceased.

Therefore, we are in agreement with the submission of the learned counsel for the appellant that the act of the appellant falls under Exception-I to Section-300 IPC i.e., culpable homicide not amounting to murder. Accordingly, the conviction of the appellant is alerted to the one under Section-304-I I.P.C. With regard to the sentence, we are of the opinion that the ends of justice would be met if the appellant is sentenced to suffer rigorous imprisonment for seven years. The fine imposed by the lower Court is, however, confirmed. Since the appellant is on bail, he shall forthwith surrender himself before the Jail Superintendent for serving the balance sentence, if any. The Criminal Appeal is partly allowed to the extent indicated above.

____________________________________________ JUSTICE C.V.NAGARJUNA REDDY ___________________ JUSTICE M.S.K.JAISWAL 05th July 2017 DR