JUDGMENT
P.S. Narayana, J.
1. This Criminal Appeal is filed by A-1 as against the Judgment in S.C.No.70/2002 on the file of III Additional Sessions Judge-cum-Fast Track Court-II, Khammam. The learned Judge by Judgment dated 14-11-2002 convicted A-1 for an offence under Section 304 Part-I IPC and sentenced him to undergo Rigorous Imprisonment for a period of 7 years and also to pay a fine of Rs.100/-, in default to suffer Simple Imprisonment for one month. Hence the Criminal Appeal.
2. Sri Vijay Kumar Goud, the learned Counsel representing the appellant/A-1 would submit that the learned Judge erred in believing the evidence of PW-1 and PW-3. The learned Counsel also would contend that at the time of offence PW-1 and PW-3 were inside the house and they could not have seen the actual occurrence and hence the said evidence is not trustworthy. The learned Counsel also commented on the learned Judge placing reliance on the confessional statement alleged to have been made to the Investigating Officer by the appellant/A-1 as substantial piece of evidence. The Counsel also would submit that the learned Judge should have appreciated the fact that the confession made to a Police Officer is inadmissible and only that portion of the confession leading to discovery alone may be admissible. At any rate, the Counsel would contend that the conviction of the appellant/A-1 for the offence under Section 304 Part-I IPC is unjustified and the sentence also is excessive.
3. On the contrary, the learned Additional Public Prosecutor had taken this Court in detail through the evidence available on record and would contend that on appreciation of the evidence of PW-1 to PW-9 and Exs.P-1 to P-7 and M.Os.1 to 6, the learned Judge arrived at a conclusion that benefit of doubt be given to A-2, but in view of the clear evidence available found the appellant/A-1 guilty for the offence under Section 304 Part-I IPC and hence the conviction and sentence and also the findings recorded by the learned Judge may have to be confirmed.
4. Heard both the Counsel.
5. The case of the prosecution is that LW-1 who was examined as PW-1 is the complainant and appellant/A-1 is the father of A-2 and all of them are residents of Kokkeragudem village. The appellant/A-1 is the paternal uncle of the deceased. The place of offence is at Kokkeragudem village under the limits of V.R.Puram Police Station which is situated within the territorial jurisdiction of the Hon’ble Court and it is an Agency Area. The appellant/A-1, LW-2 and LW-8 are own brothers. The deceased was son of LW-2. The appellant/A-1 and LW-2 shared their landed properties situate in front of their houses and erected demarcation boundaries. Gradually the appellant/A-1 was disturbing the boundary and ploughing the said land with malafide intention to occupy a little extent of land of LW-2 for which there is a dispute prevailing between the deceased and the appellant/A-1. On 8-3-1998 the deceased went to the house of the appellant/A-1 in his absence and abused his wife. Soon after the return of the appellant/A-1 and A-2, the wife of appellant/A-1 informed them about the deceased abusing her. The appellant/A-1 and A-2 got enraged and picked up a bow with two arrows and one banda kathi respectively and went to the house of the deceased at about 2000 hours. The deceased was taking meals and the accused started abusing the deceased by remaining at the hedge. The deceased completed his meals, washed hands by talking to the accused, went for pissing and while he was going inside the house by telling them that they would discuss the matter on the next day and advised them to go away from the place, the appellant/A-1 released an arrow from his bow very close to the deceased aiming him to do away with the deceased which hit on the back and came out (appeared) at the abdomen. A-2 attempted to hit with banda kathi but the deceased raised cries and rushed into the house, removed the arrow which was broken into two pieces and died instantaneously. LW-7 witnessed the incident and the accused fled away. On vague information, the Circle Inspector of Police, Chintoor visited Kokkeragudem village where the complainant orally reported about the occurrence to him. The Circle Inspector of Police recorded her statement, reduced into writing, endorsed the same to the S.H.O., V.R.Puram for registering a case. On 9-3-1998 at 1230 hours on receipt of the endorsement, LW-14, S.H.O., Assistant Sub Inspector, registered a case in Cr.No.8/98 under Section 302 IPC r/w. Section 34 IPC and issued express F.I.R. to all the concerned and sent the C.D. file to the Circle Inspector of Police, Chintoor at his camp for further investigation. During the course of investigation, the Circle Inspector of Police examined L.Ws.1 to 8 and recorded their statements, visited the spot, held inquest over the body of the deceased in the presence of mediators L.Ws.9 and 10, seized tugged cloth, a towel having blood stains and two pieces of broken arrow having blood stains. He drew a sketch of the scene and got photographed the scene of offence by LW-5 and referred the corpse for post mortem examination and the accused were arrested on 11-3-1998 and on interrogation the accused confessed to have committed the offence and the confessional statement of the accused was recorded in the presence of mediators and seized one bow and one arrow from the possession of the appellant/A-1 and one banda kathi from the possession of A-2 which were used in the commission of the offence under a cover of panchanama in the presence of mediators L.Ws.11 and 12 and the accused were sent to judicial remand. The material objects seized were sent to Forensic Science Laboratory, Hyderabad for chemical analysis and the report was received. The Medical Officer, LW-13, who conducted autopsy over the body of the deceased issued detailed Post Mortem Examination Report stating that the cause of death of the deceased was due to hemorrhage and shock resulting from the injury to the spleen. The investigation of the case established that on 8-3-1998 at about 2000 hours at Kokkeragudem village the appellant/A-1 and A-2 with common intention killed the deceased by releasing arrow from the bow. Therefore the accused are liable for punishment for the offence under Section 302 IPC r/w. Section 34 IPC.
6. The case was registered as P.R.C.No.1/98 and committed to the Court of Session and S.C.No.54/2000 was made over to the Court of I Additional Sessions Judge, Khammam and thereafter the case was transferred to the III Additional Sessions Judge-Fast Track Court-II, Khammam as per proceedings of the High Court in ROC.No.3264/E1/10/2001, dated 4-7-2002. The learned Judge examined PW-1 to PW-9, marked Exs.P-1 to P-7 and M.Os.1 to 6 and after recording reasons recorded acquittal as far as A-2 is concerned and convicted the appellant/A-1 under Section 304 Part II IPC.
7. The case the prosecution in brief can be narrated as hereunder :
PW-1 is the wife of the deceased. PW-3 is the sister of PW-1 and they are eye witnesses to the offence. They stated that there was a land dispute and on that the day both the accused came to their house at about 7.30 p.m. and the appellant/A-1 was armed with arrow and bow and A-2 was armed with a patta kathi. At that time the deceased after finishing the meals informed the accused that tomorrow it will be settled as it was dark and when the deceased turned back to go into the house the appellant/A-1 released an arrow on the back side and it was hit on the back side and the same was removed by the deceased and afterwards he fell down on the ground and died. PW-1 and his brother-in-law sent word to L.Ws.2 and 4. They immediately came to the house and in the meanwhile the accused ran away. The evidence of PW-2 and PW-4 who are the circumstantial witnesses, rushed to the scene of offence on hearing the cries of PW-1 and PW-3. On the next day morning they went to the C.I. of Police, Chintoor and he drafted the report and they sent the same to the P.S.V.R.Puram. The report is marked as Ex.P-1. PW-8 received the report and registered the case and sent F.I.Rs. to all the concerned. The Court F.I.R. is Ex.P-4. PW-9, the Investigating Officer, recorded the statement of PW-1 and sent the same for registration through P.C.451 and conducted inquest on the body of the deceased in the presence of PW-6 and others. The inquest report is marked as Ex.P-5. He also prepared the rough sketch of the scene of offence marked as Ex.P-6 and seized M.Os.1 to 4 at the scene of offence in the presence of PW-6 and another and sent the dead body to the Government Hospital for Post mortem examination along with police through the requisition.
PW-9 is the Investigating Officer who went the scene of offence and investigated the offence. On 11-3-1998 at about 12 noon he arrested the accused at their houses and they confessed in the presence of PW-7 and another. M.Os. 5 and 6 were recovered at the instance of PW-1 and PW-2 and the seizure is marked as Ex.P-3. Further the Investigating Officer sent M.Os.1 to 4 to Forensic Science Laboratory and Ex.P-7 is the report. PW-9 after completing the investigation filed charge sheet against the accused.
PW-1 specifically deposed that the deceased is her husband and she got married with the deceased about ten years back and they begot three daughters and one died and this witness, her husband, LW-2 and his family members including my parents-in-law were living in the house and her husband died five years back. PW-1 also deposed that there was a land dispute. On the fateful day both the accused came to the house at about 7 p.m. and A-1 was armed with bow and arrow and A-2 was armed with patta kathi and at that time her husband, the deceased, came out after finishing the meal and informed the accused that tomorrow the land dispute will be settled as it was dark and when the deceased was returning into the house, the appellant/A-1 released the arrow and the same bit on the backside of the deceased and the deceased removed the same and after falling down on the ground he died. Then PW-1 and her brother-in-law’s wife sent word to L.Ws.2 and 3 Veeraiah and Lachaiah and they immediately came to the house and in the meanwhile the accused ran away. On the next day morning they went to the Circle Inspector of Police, Chintoor and the report is Ex.P-1. PW-1 was cross-examined, but nothing serious had been elicited to discredit the evidence of this witness.
PW-3 also had deposed in the same fashion well supporting the version of PW-1. PW-2 no doubt deposed that the deceased was his brother and the accused also are interrelated and while he was at the cattle shed, PW-1 and his wife called him and he went there to the scene of offence and found the deceased dead and he was informed that the deceased died due to the release of arrow by A-1 on the deceased. This witness deposed only to this extent.
PW-4 deposed that the deceased was his brother’s son and his house is at a distance of two acres to the house of the deceased and five years back at about night time while he was in the cattle shed he heard cries and then he immediately went to the scene of offence and found the deceased dead and he saw the injury from back side to front side and he enquired PW-1 and PW-3 and they stated before him that the appellant/A-1 released arrow on the back side of the deceased which caused the death of the deceased. He also deposed that the accused were not there and there is a land dispute between the deceased and the accused. This is the evidence of PW-4.
PW-4 at the best supports the evidence of PW-1 and PW-3 to the limited extent as to what actually had happened just after the incident. However, the evidence of PW-1 and PW-3 is clear, categorical and natural and convincing and nothing serious had been elicited in their cross-examination.
PW-5 is the Medical Officer who conducted the Post Mortem Examination and found the following external injuries :
“A stab injury on the back side of the abdomen below the costal margin extending through the abdomen to the left side of the anterior abdominal wall just below the costal margin. Dried blood present around the wound margins are averted and retracted. Size of the injury on the entrance side is 1″ x 1/3/4″ x?, exit wound 1″ x 1/2 ” x ?. The injuries are caused by a sharp weapon and ante mortem in nature.”
PW-5 found the following internal injuries during the Post Mortem Examination :
1. Spleen is cut to the extent of 1″ x 1/2″ x 1/2″. Transverse polan is cut at the spleenic level.
2. Peritoneal cavity contained about 2 litres of dark fluid blood.
PW-5 deposed that the cause of death to the best of his knowledge is hemorrhage and shock resulting from the injury to spleen and the approximate time of death is about 24 hours prior to Post Mortem Examination. He also stated that it is possible for causing such an injury by a sharp weapon object like an arrow. He got issued the Post Mortem Certificate marked as Ex.P-2. This witness also deposed that if expert treatment was given the deceased there is a possibility for survival of the deceased.
PW-6 deposed about the inquest panchanama and also the seizure of M.Os.1, 2, 3, and 4. PW-7 deposed that A-1 and A-2 confessed before him stating that they have committed the offence and they also got intention to kill the deceased. The confession was recorded by the C.I. of Police and afterwards the appellant/A-1 produced broken arrow from his house and A-2 also produced patta kathi from the house of A-1 and the same were seized by the police and the seizure panchanama is marked as Ex.P-3. MO-5 is the bow and MO-6 is the banda kathi.
PW-8 is the Sub-Inspector of Police and PW-9 is the Inspector of Police who had deposed about the details of investigation in detail.
8. On appreciation of this evidence, the learned Judge recorded findings in detail and arrived at a conclusion that the case as against the appellant/A-1 also may not fall under Section 302 I.P.C. as such and he was found guilty under Section 304 Part-I IPC. The medical evidence to the effect that if expert treatment had been given there was a possibility of survival of the deceased would go to show that the offence committed by the appellant/A-1 especially in the light of the acquittal recorded as against A-2, would fall under Section 304 Part-II IPC and not under Section 304 Part-I IPC and accordingly the conviction and the sentence recorded by the learned Judge under Section 304 Part-I IPC are hereby set aside and in stead the appellant/A-1 is convicted under Section 304 Part-II IPC and is sentenced to undergo Rigorous Imprisonment for a period of 31/2 years.
9. Thus the Appeal is partly allowed as indicated above and the appellant/A-1 shall serve the rest of the sentence.