Gurramkonda Subramanyam Reddy vs The State of Andhra Pradesh

L. Narasimha Reddy, J.—The appellant herein was tried by the Court of VI Additional Sessions Judge, Tirupathi, as sole accused, in S.C. No. 44 of 2008. The case as presented by the prosecution before the trial Court was that the appellant had 1/8th share in the water of a Well, known as ''Jorabavi'' at Pothavanigunta Village, whereas one Sri P. Krishna Mandali, husband of P.W.1, has 7/8th share. On 22.01.2007, it was said to be the turn of Krishna Mandali to draw water. However, by the time he went to the Well in the morning, the accused is said to have switched on the motor and when Krishna Mandali questioned about this, the accused is said to have taken out a wooden plank and beat Krishna Mandali on the head. Krishna Mandali is said to have died on the spot.

A complaint, in this behalf, was submitted by one Sri P. Subramanyam Mandali - nephew of the deceased, in K. Nagar P.S., on 22.01.2007 at 2.30 P.M. It was stated that himself, P.Ws.4 to 6 were present at the site as labourers. He has also furnished the other details of the occurrence. The police registered Crime No. 11 of 2007 alleging offence punishable u/s 302 I.P.C., against the accused. The scene of offence was visited by the police, panchanama in that behalf was drawn, inquest was made and the body of the deceased was sent for post-mortem examination. During the course of investigation, the statements of the persons, who are acquainted with the crime were recorded and a charge-sheet was filed. The trial Court framed charge in this behalf and on accused pleading not guilty, trial was conducted. The prosecution examined P.Ws.1 to 18, and Exs. P.1 to P.14 were marked. M.Os.1 to 7 were also taken on record.

Through its judgment, dated 26.02.2010, the trial Court convicted the accused for the offence punishable u/s 302 I.P.C. and imposed the sentence of imprisonment for life and fine of Rs. 1,000/-, in default to undergo simple imprisonment for three months. Hence, this appeal.

Sri C. Masthan Naidu, learned counsel for the appellant, submits that the person, who presented Ex. P.6, was not available for examination; P.Ws.4 to 6, named therein, did not support the case of the prosecution, and though P.W.3 deposed in favour of the prosecution, his name did not figure in Ex. P.6. He contends that the evidence of P.W.7 is not trustworthy and the trial Court ought not to have convicted the accused. Learned counsel further submits that the evidence of P.W.3 does not accord with the scene of offence panchanama, or with the evidence of other witnesses.

Learned Additional Public Prosecutor, on the other hand, submits that non-examination of the person, who submitted complaint, on account of his death; is not at all fatal to the prosecution case. She contends that though the non-examination of the person, who submitted Ex. P.6, may make it to cease to be a piece of substantial evidence, it does not adversely affect the evidence of other witnesses. She submits that P.Ws.3 and 7 clearly stated about their presence near the scene of offence.

The complaint about the incident leading to the death of the deceased was submitted by his nephew. However, that person was not available for examination as a witness, since he died by the time the case was taken up for trial. It is true that the names of P.Ws.4 to 6, were mentioned in Ex. P.6 and all those witnesses have been declared as hostile, at the instance of the prosecution. The fact, however, remains that in their chief-examination, all those witnesses have stated that they went to the field nearby the occurrence, as agricultural labourers and they have seen the accused and the deceased quarrelling. The reason for these witnesses being declared as hostile was their disinclination to give further details about the incident.

It is no doubt true that the name of P.W.3 was not mentioned in Ex. P.6. The witness was otherwise consistent in his version. He stated that he is grazing his cattle at a distance of about 100 feet from the place where the incident occurred, and that he has seen the accused beating the deceased when questioned about the switching on the motor on a day, which is not of his turn. In the cross-examination, no questions doubting the very presence of P.W.3 were put. The presence of the name of P.W.3 in Ex. P.6 would have certainly kept his evidence above suspicion. At the same time, the absence of his name cannot be treated as a factor to discard it altogether. Had the person who submitted Ex. P.6 been available for examination, the reasons could have been elicited. It is not uncommon that the names of persons that are mentioned in the complaint or FIR are excluded and names of others are included as and when the investigation is in progress. The contents of FIR or a complaint cannot be treated as final and they can be utilized only to know broad contours of the case and to ensure that a different version altogether, is not presented in the course of trial. In the memo of evidence, the name of P.W.3 figured as L.W.5, as an eye-witness to the occurrence. The Investigating Officer - P.W.18, is the best person to explain matters of this nature and if the accused wants to doubt the very presence of P.W.3 at the scene of occurrence, necessary questions in that behalf ought to have been put to him. In clear and categorical terms P.W.18 stated that he examined P.W.3 as an eye-witness and it was not even suggested to him that the name of P.W.3 came to be inserted at a later point of time.

P.W.7 is another witness, who supported the case of the prosecution. His evidence is brief and it is stated that from a distance of about 150 feet he has seen the accused and the deceased quarrelling with each other. The only contradiction that was elicited from him was that in the statement recorded by the police, he did not state that the accused and the deceased did not beat each other. Once it is not in dispute that P.W.7 stated before the police that he has seen the accused and the deceased quarrelling, the information elicited in the cross-examination is nothing but an emphasis or difference in semantics. While "beating each other'', is a rustic expression, "quarrelling'' is a sophisticated one. Both the expressions convey same meaning. We are, therefore, convinced that the prosecution was able to establish that the death of the deceased was caused by the accused.

Extensive arguments are advanced by the learned counsel for the accused to treat the occurrence as the one, which attracts Part- II of Section 304 I.P.C. The learned Additional Public Prosecutor has opposed this. On a careful examination of the evidence on record, we find that there was no basic enmity, as such, between the accused and the deceased, to the level of one planning to kill the other. They were sharing the water of the Well for years together, without any difficulty. It appears that on account of acute necessity or with the objective of saving his crop, the accused transgressed his entitlement and started using the water on a day, which fell to the turn of the deceased. Except this, there is no other reason for their quarrelling with each other. May be on account of the use of provocative language by either or both of them, quarrel ensued and the deceased came to be beat by the accused with a stick. It cannot be said to be a premeditated step to put the deceased to death. This occurred at the spur of the moment and the incident fits into Part-II of Section 304 I.P.C.

Hence, the appeal is partly allowed, modifying the conviction ordered by the trial Court against the accused to be the one under Part-II of Section 304 I.P.C, and the sentence to be one of rigorous imprisonment for five (5) years and fine of Rs. 1,000/-, in default, to undergo simple imprisonment for six months.

The miscellaneous petition filed in this appeal shall also stand disposed of.