Ganthula Hanmanthu vs State Of Ap.

This criminal appeal is directed against the judgment of conviction and sentence dated 11.12.2013 in Sessions Case No.8 of 2010 passed by the VII Additional Sessions Judge, Bodhan.

By the impugned judgment the appellant/accused (hereinafter, ‘the accused’) was convicted for the offence punishable under Section 304 Part-II of the Indian Penal Code, 1860 (for short ‘the IPC’) and sentenced to rigorous imprisonment for ten years and also fine of Rs.500/-, in default simple imprisonment for two months.

Heard Mr.V.Ravi Kiran Rao, learned Senior Counsel for the appellant and Mr. S. Ganesh, learned Additional Public Prosecutor for the State.

3(a). The prosecution case in brief is that the de facto complainant/PW-1 lodged a report/Ex.P-1 stating that on 9.06.2008 herself along with her brother/Naroji Gangadhar/deceased (hereinafter, ‘the deceased’) after attending the work at Varni village tank under employment guarantee programme came home and at about 2 p.m. her brother/deceased left home. At about 4 p.m. when she went to fetch tap water, near bus stand some children informed that her brother/deceased and Gonthula Hanmanthu/accused were altercating at Patel temple. Immediately she proceeded there and near the temple, she saw the accused and when questioned while moving forward he informed that the sons of Rama Rao/PWs.4 and 5 had quarreled with her brother. On reaching temple she found her brother fallen supine with froth from his mouth. When she given off some water, he did not swig. Thus realized that then he died. When she enquired, the children of the village informed her that while playing cards in the pochamma temple, Ashtori Bheem Rao/PW-5 and the accused had altercation and her brother/deceased intervened to pacify but the accused pushed her brother/deceased and kicked on the testicles, as a result her brother died on the spot. Thus prayed for necessary action.

3(b). Basing on the report the then Head Constable of Police Station, Varni/PW-12 registered a case in Crime No.84 of 2008 and issued FIR/Ex.P-7, thereupon the investigating officer/ PW-13 proceeded to the scene of offence recorded the statements of witnesses/PWs.1 to 3 and Naroji Gangavva, examined the scene of offence prepared rough sketch/Ex.P-4 in the presence of mediators/B.Lingam and E.Surender/PWs.8 and 9. Thereafter conducted inquest panchanama/Ex.P-5 in the presence of K.Gagaram/PW-10 and another, forwarded the deadbody for post mortem examination. Dr.Krishna Prasad/PW-11 conducted post mortem examination and issued report/Ex.P-6 opining that the death was due to vaso vagal instibition as a result of injury to both the testicles.

3(c). In the charge sheet, the prosecution averred that, as per the investigation, the accused was addicted to vices and used to gather children and force them to play cards at pochamma temple. Though the elders warned, the accused continued such activity and earlier, when the then ward member/Y.Gangaram/PW-7 made an effort to stop, the accused caused bleeding injuries to him and in that incident one Bapooji Lingam/PW-8 had rescued the victim. On the date of the incident the accused gathered Ashtori Madhav Rao/PW-4, Ashtori Bheem Rao/PW-5 and Vadla Vankatesh/PW-6 and all of them were playing cards wherein a dispute arose regarding money between the accused and Bheem Rao/PW-5 and while they were physically altercating the deceased intervened and made an effort to pacify the quarrel. But the accused pushed the deceased and kicked on his testicles which resulted in the death of the deceased on the spot.

The learned Magistrate of the jurisdiction had taken cognizance and registered the case PRC No.35 of 2008 and after due proceedings forwarded the matter to the Principal Sessions Division, Nizamabad. Whereafter, the sessions case was numbered and made over to the trial Court for adjudication.

The learned Sessions Court after framed the charges and in trial, the prosecution got examined 13 witnesses/PWs.1 to 13 and marked documents/Exs:P-1 to P-7. In Section 313 Code of Criminal Procedure, 1973 the accused denied the incriminating material, but no defence evidence has been placed. Having regard to the evidence on record, the trial Court concluded that the prosecution had established the charge beyond reasonable doubt under Section 304 Part-II of the IPC, accordingly recorded conviction and sentence as mentioned above.

6(a). Learned Senior Counsel for the appellant in appeal would contend that the evidence of PWs.4 and 5, though full of contradictions, the trial Court erroneously relied in recording guilt of the accused. The projection of prosecution was that, the PW-5 had altercated with the accused at relevant time and the PW-4 is his brother, as such they speaking against the accused is reasonably conceivable. The PW-4 account in regard to manner of occurrence is that, the accused kicked the deceased with knee is clearly in deviation with the other eyewitness/PW-5 statement that the accused kicked with the foot. Further contended that as per PWs.4 and 5, after the incident they were also taken into police custody along with others for about a week and they were released on the intervention of the sarpanch. These statements are establishing the role of PWs.4 and 5 was also suspected by the police in the incident and especially in the light of admission of the PW-4 that they were briefed by the police it can be safely inferred that, they had acted under influence. In addition mentioned that, indisputably the statement of the PW-1 was that at relevant time the accused informed her about the quarrel between the deceased and the PWs.4 and 5 and if the accused was involved in the incident such a word or conduct ordinarily would not be possible, but the trial Court had ignored these aspects while determining the charge.

6(b). That apart, pleaded that there was clear delay in lodging FIR. As per PW-12 the de facto complainant had given written complaint, whereas the PW-1 deposed that it was recorded by the police and there is inconsistency in the time given by the witnesses as to the time of police reaching the scene. Further the doctor/PW-11 had clarified that the injury suffered by the deceased is possible when a person falls on a stone, which is suggesting the other probability than the prosecution case. Furthermore, there is no explanation as to why the deceased was sleeping at the temple and the playing cards were not seized. Therefore, summed up that, these inconsistencies are giving scope to entertain a reasonable doubt, as such the accused should have been acquitted. Hence prayed for allowing the appeal.

In contrast, the learned Additional Public Prosecutor has submitted that the presence of the accused near the place of occurrence is being established by the testimony of the PW-1 and the appellant/accused is not disputing this fact. The eyewitnesses/PWs.4 and 5 had specifically narrated the manner of occurrence and the medical evidence of the doctor/PW-11 is corroborating the same. Nothing contrary has been made out in cross examination in regard to the core facts of occurrence spoken to by the witnesses in regard to the accused’s involvement in the scuffle. The other aspects pointed out in the appeal are peripheral in nature and the variation in the statements of the witnesses as to time of occurrence, at the best would be minor discrepancies and at any stretch cannot be stretched to disbelieve the occurrence itself. Thus the trial court was proper in convicting the accused as the charge was proved beyond reasonable doubt and the sentence was appropriate.

I have carefully considered the contentions raised in the appeal and the materials on record are perused.

To sustain the charge the prosecution has to establish that the accused had kicked the deceased with the knowledge that such an act is likely to cause death but without any intention to cause death or to cause such injury as is likely to cause death.

At the outset, it is well settled that mere delay in lodging FIR, will not discredit the prosecution case unless the aspects of deliberations and false implications are made out. Further, difference in the time stated by the witness with one or two hours variance per se cannot be an adverse circumstance as there is natural plausibility of disparity in an individual’s comprehension. The reason why the deceased was sleeping at the temple and seizure of playing cards are farther facts or circumstances in proving the charge. Hence the contentions raised on these aspects are unacceptable to discard the prosecution case.

In regard to the material aspects, the evidence of de facto complainant/PW-1 that on 09.06.2008 in the afternoon, upon receipt of information she rushed to the temple and found her brother/deceased in the verandah of the Pochamma temple with froth from mouth and by then he was no more. Further the evidence of mediator for scene of offence/PW-9 and panchanama/Ex.P-4 and the mediator for inquest/PW-10 and inquest report/Ex.P-5 are establishing the fact that the deceased died on 09.06.2008 in the premises of pochamma temple and the evidence of doctor/PW-11 and his certification in post mortem examination report/Ex.P-6 are establishing that the death was due to vaso vagal instibition as a result of injury to both the testicles. Though the accused had elicited in the cross examination of the doctor that the injury is possible by fall on a stone, it is neither the prosecution case nor defence theory that the deceased had suffered the injury otherwise. Be that as it may, by the oral and documentary evidence, the death of the deceased on 09.06.2008 in the premises of Pochamma temple with injuries on testicles, which was other than the natural circumstances can safely be concluded.

In regard to involvement of the accused, the prosecution had essentially relied on the direct evidence of PWs.4 and 5. As per Madhav Rao/PW-4, his brother/PW-5 came to the temple to take him and by the time of his arrival himself (PW-4) was playing cards with the accused. When his brother/PW-5 questioned the accused for playing cards with children, the accused caught hold of his brother’s/PW-5’s collar and quarreled with him. Then himself (PW-4) tried to separate them and the deceased who was sleeping near the temple came there and intervened to separate them whereupon the accused pushed the deceased and kicked on his testicles. The version deposed by the PW-5 is supporting the evidence of PW-4.

Pertinently, the prosecution case and the charge framed by the trial Court is that at relevant time the accused was playing cards in pochamma temple and there arose a money dispute with Bheem Rao/PW-5 and when they were scuffling, the deceased intervened and made an effort to pacify the quarrel, then incident occurred.

Further as per PW-4 the accused kicked the deceased with knee and then ran away. Whereas the PW-5 deposed that the accused kicked the deceased with foot. This particular as to manner of occurrence is evidently distinct between the PW-4 and PW-5.

Furthermore, the de facto complainant/PW-1 in her first information statement/Ex.P-1 mentioned that, when she was reaching the Patel temple the accused came across and while proceeding further informed that the sons of Rama Rao/PWs.4 and 5 were quarrelling with her brother/deceased. As PW-1, she deposed that when she was reaching the temple the accused was coming from the temple side with the sons of Madhav Rao/PWs.4 and 5 and in cross examination clarified that the accused told her that the PWs.4 and 5 quarreled with the deceased and the accused was bringing them from the temple side.

This version is establishing the fact of finding the accused and the presence of PWs.4 and 5 at the temple and as the accused had not disputed this fact in cross examination, stands as proof of his presence at the scene along with PWs.4, 5 and the deceased.

In this context, to note, in cross examination the PW-4 categorically stated that they were taken by the police on the date of the incident and were released at the instance of the sarpanch. He also specified that the Sub-Inspector of Police beat him and then recorded his statement and also the statement of his brother/PW-5. The PW-5 had stated that the police took him including other six persons to the police station on the date of the incident and kept in their custody for a week and the police beat them for 2 to 3 days and their sarpanch got released from the police and he was examined by the police six days after the incident.

These statements of the PWs.4 and 5 are indicating that the police had taken the PWs.4 and 5 also into custody in regard to the incident. When the police report/Ex.P-1 and the FIR/Ex.P-7 are referring to the involvement of the accused in the incident why the police would take the PWs.4 and 5,without a reason or doubt against them. Nonetheless, the prosecution has neither denied nor explained the statement of PWs.4 and 5 about taking them into custody during investigation and how the accused’s role in the occurrence has been confirmed.

Another point falls for consideration is, even by the evidence of PWs.4 and 5 the incident initially was between the PW-5 and PW-4 and the accused. Whereupon the deceased had interfered. Thus in all probabilities the injury to the deceased should have been caused by deliberate act of the accused or of the PWs.4 and 5 or even by accidental act. The PWs.4 and 5 being brothers making any statement against their interests would be implausible. In spite of clear material as to presence of others during relevant time, the investigating agency at its wisdom did not choose to examine any of them to have an independent third view.

These circumstances are setting forth the prosecution projected facts and circumstances of occurrence are divergent with the account of occurrence deposed by the eyewitnesses, particularly the manner in which the accused said to have caused the injury. Additionally for the above read aspects, this Court is of the considered view that, there is ample scope for entertaining reasonable doubt as to accused causing the injury. Therefore concluding the guilt of the accused only on the statements of PWs.4 and 5 would be improper and unjust. In consequence the accused is entitled for benefit of doubt. Accordingly, the conviction and sentence against the accused under Section 304 Part-II of the IPC is liable to be set aside.

In the result, appeal is allowed, the impugned judgment of conviction and sentence dated 11.12.2013 in Sessions Case No.8 of 2010 passed by the VII Additional Sessions Judge, Bodhan is set aside.

As a sequel, miscellaneous petitions if any pending, stands closed.