HON’BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.632 OF 2014

JUDGMENT:

Heard Sri K.Sarala Mahender Reddy, learned counsel for the appellant and Sri M.Vivekananda Reddy, learned Assistant Public Prosecutor for the State.

2. The appellant was charged for the offence under Section 302 of the Indian Penal Code, however, the trial Court found that the acts of the accused amounted to offence under Section 304(ii) of the Indian Penal Code, and convicted him accordingly.

3. According to PW.1 who is the wife of the deceased, the appellant is her nephew. In the complaint filed on 12.12.2011 at about 1:00 a.m. the deceased borrowed some amount from the appellant. The appellant threatened the deceased to kill if he fails to pay the outstanding debt. On 11.12.2011, around 7:00 p.m., the appellant went to their house and there was a quarrel. The appellant pushed the deceased forcibly due to which he fell down on the ground and the appellant and his mother Shantabai kicked the deceased with legs on his stomach. Due to the said assault, deceased died on the spot.

The said complaint was taken up for investigation. The Police went to the scene, conducted scene of offence panchanama. Thereafter, having concluded the inquest proceedings, sent the body for postmortem examination.

4. The doctor (PW.8) who conducted postmortem found the following injuries.

i) Contused lacerated wound on forehead measuring 2 x 1 x

1/2 cms.

ii) contused lacerated wound on forehead measuring 1 x 1 x

1/2 cms.

iii) Contused lacerated wound on forehead measuring 1 x 1 x

1/2 cms.

He also found on internal examination, cerebral hemorrhage in frontal lobe brain, due to the above said three injuries. He further stated that;

“The injuries No.1 to 3 are sufficient to cause death. All the three injuries can be possible by blunt or sharp object. The said injuries are not possible due to fisting. The said injuries are not possible by fisting with hands and kicking with legs. Hypoxia means inadequate supply of Oxygen.”

5. On the basis of the evidence collected during investigation, charge sheet was filed. Learned Sessions Judge accordingly convicted the appellant.

6. Learned counsel appearing for the appellant would submit that the Police had started the investigation even prior to registration of FIR which is evident from the admission of PWs.2 and 3. In fact, the witnesses PWs.1, 2, and 3 have given contradictory versions. The evidence of PW.1 is totally contrary to the complaint Ex.P1. In the statement made before the Court, PW.1 stated that the appellant demanded money from the deceased and when he refused to pay, he was beaten up by kicking on his chest and throttling him in the open yard of the house by the appellant. The said version is contrary to the medical evidence. Since no offence was made out against the appellant, the appellant deserves to be acquitted.

7. Having gone through the record, PW.1 who is the wife of deceased stated that appellant demanded the amount and when the deceased refused, the appellant sat on the chest of her husband and pressed his neck in the open yard of their house and also throttled him. According to the Doctor PW.8 there were contused lacerated wounds on the head. The doctor further stated that the said injuries would not be possible by kicking or giving fist blows.

8. It is normal that the witnesses would exaggerate regarding the incident, however, the fact remains that the appellant had gone to the house and the incident had taken place. Though, the exact version of beating stated at the Court was not stated in the complaint, however, according to the evidence of PWs.1, 2 and 3 given before the Court is that the appellant sat on the chest and throttled the deceased. The said version is totally contrary to the medical evidence. The doctor states that the death was on account of Hypoxia which means that there was inadequate supply of Oxygen to the brain and did not say anything about finding signs of throttling.

9. The version of throttling by sitting on th