Dudekula Khabala Saheb alias Khabala vs State of Andhra Pradesh

P. Venkatarama Reddy, J.—The accused who is the wife''s younger brother of the deceased used to assist him in digging burial pits since about six months prior to the date of offence and they were sharing the collections. As per the version in Ex. P-1, on 8-3-1989, the accused engaged himself in vending ice-cream and in his absence, the deceased dug a burial pit and appropriated the amount received exclusively without sharing with the accused. On the evening of 9-3-1989, the appellant and the deceased proceeded to the toddy shop of P.W. 6 and consumed toddy. Not being satisfied with it, they went to another nearby shop of P.W. 7 and consumed arrack at about 7-00 p.m. After the drink, the accused demanded his share of collections received on 8-3-1989 for which the deceased refused. There was heated exchange of words between the accused and the deceased. Thereupon, P.W. 7 asked them to get away from the shop. Shortly thereafter, P.W. 2, a relation of the deceased and his wife saw the accused holding late Imam Saheb by placing a towel around the neck near M.G. Brothers lorry office and further saw him holding and twisting the hand of Imam Saheb. They also noticed the accused abusing the deceased. When P.W. 2 questioned the accused, he informed him that the deceased evaded to pay his share of the collections made on 8-3-1989. He further asked P.W. 2 to mind his own business. Thereafter, P.W. 2 and his wife suspecting, that the accused might harm the deceased, went in a rickshaw to the house of the deceased and informed his wife Fathima about the incident. Immediately the wife and son of the deceased (P.W. 1) rushed to the lorry office and came to know through Talari Lakshmanna (P.W. 3) that the appellant dragged away Imam Saheb placing a towel around his neck towards the burial ground. On that, the wife and son of the deceased rushed to the burial ground and there, they saw the accused dragging Imam Saheb on the ground with a towel around his neck near the Mandapam of the burial ground and hitting him with a stone on the back of the neck and on the head. The head of the deceased broke and he died immediately on the spot. The accused went away in a drunken mood abusing the deceased. According to the complaint-Ex. P-1 given by the wife of the deceased, the incident took place at 8-00 p.m. and it was witnessed by her and her son (P.W. 1). The wife of the deceased went to the police station at 10-00 p.m. and reported the matter. The Sub-Inspector of No. 1 Town Police Station (P.W. 11) recorded the statement which is marked as Ex.P-1 and registered the crime u/s 302 Indian Penal Code. He issued express F.I.Rs. to all concerned. Ex. P-9 is the F.I.R. P.W. 11 rushed to the scene of offence. At that juncture, the Inspector of Police (P.W. 13) who received the FIR at 11-15 p.m. proceeded to the scene and took over investigation. He examined the wife of the deceased and P.W. 1 and recorded their statements. On the morning of 10-3-1989, he held inquest over the dead body of the deceased. He recorded the statements of P.W. 2, the wife of the deceased and P.W. 6 during inquest. P.W. 9 and others acted as inquest panchas. He seized M.Os. 1 to 4 from the crime spot. M.O. 1 is the stone slab with which the accused is alleged to have hit the deceased. According to P.W. 13, the blood stains on the stone slab got washed off on account of rain on the evening of 10-3-1989. A towel was also seized during the inquest but it was not produced before the court. Ex.P-7 is the inquest report. P.W. 13 sent the dead body for post-morterm examination. P.W. 5 conducted the autopsy on the dead body on 10-3-1989. The post-mortem report is Ex. P-4. P.W. 13 arrested the accused at 7-00 p.m. on 11-3-1989 at his house and sent him for remand. The chemical analysis report is marked as Ex. P.14. P.W. 14 who was working as Sub-Inspector of Police at Anantapur I-Town Police Station filed the charge-sheet on 22-5-1989 by which time P.W. 13 was transferred.

The learned Sessions Judge relied on the direct evidence of P.W. 1 as well as the evidence of P.W. 2 which according to him stood corroborated by the contents of Ex.P-1 and the medical evidence. At the same time, the Sessions Judge also held that in view of the drunken state of the accused, the offence falls u/s 304 Part-I I.P.C. Accordingly, he convicted the appellant under the said section and sentenced him to R.I. for 7 years and imposed a fine of Rs. 100/-. While the accused questioned the conviction in Crl. A. 424/94, the State questioned the conviction of the accused under S. 304 Part-I, I.P.C. instead of Section 302 I.P.C. by filing Criminal Appeal No. 1154/94.

The wife of the deceased who lodged the complaint Ex. P-1 at the police station on the night of 9-3-1989 died in the year 1991 as per the evidence of P.W. 1, that is to say, before the trial commenced.

The first part of the incident was spoken to by P.W. 2 who is related to the deceased as a brother by courtesy. P.W. 2 spoke to the fact that while he and his wife were returning to their house after seeing a doctor in the old town, they saw the accused pulling the deceased by placing a towel around his neck near M. G. Brothers'' lorry office and taking him to a lane. Then, he chastised the accused. The accused stated that he was questioning the deceased with regard to his share of the burial pit collections and that he should not interfere in the matter. Then P.W. 2 and his wife went in a rickshaw to the house of the deceased and informed his wife and son (P.W. 1). On the next day morning, the Sub-Inspector took him to the burial ground and an inquest was held during which he was examined by the police. In the cross-examination, he stated that both the accused and the deceased were found moving in a drunken state, shouting and pushing each other. P.W. 2 also stated that the accused dealt two blows and twisted the hands of the deceased. The deceased was found fully drunk unable to talk anything.

P.W. 1, the son of the deceased is the eye witness. He spoke to the fact that his father and the accused were sharing collections realised from digging burial pits and the accused was residing in a hut located within the burial ground. P.W. 1 deposed that P.W. 2 and his wife came to their house in a rickshaw at about 7-30 p.m. and informed him that the accused was pushing away his father by placing a towel around his neck and beating and abusing him near M. G. Brothers'' lorry office. On receiving this information, he and his late mother went in a rickshaw to the lorry office located near Sangamesh theatre in the old town. They did not find his father and his accused at that spot. Then, his mother made enquiries with the tea stall vendor, P.W. 3 who turned hostile. P.W. 3 informed her that he saw a person dragging another with a towel around his neck towards burial ground and also beating him. Then, he and his mother proceeded towards the burial ground which was situated adjacent to Drivers'' colony. He further stated that there was a tube light within the burial ground. Then they saw the accused dragging his father on the ground with his face downwards. On seeing them, the accused picked up a big stone slab and hit on the back of the head of his father and then hurled it on his head. Then, the accused who was in a drunken state, left the place abusing the deceased for not paying the money due to him. His father who was profusely bleeding with injuries died instantaneously at about 8-00 p.m. Some time thereafter, he and his monther went to the I-Town Police Station. His mother narrated the incident to the police who recorded her statement. P.W. 2 stated that he also signed on Ex. P-1. But he admitted in the cross-examination that Ex. P-1 did not contain his signature. He clarified that he signed on some other papers at the police station. He identified M.O. 1 as the stone slab found near the scene of offence and also M.Os. 2 to 4 which are the shirt, banian and underwear worn by his father. In cross-examination, he reported that they made enquiries with the tea stall owner and proceeded to the burial ground and by the time they went there, the deceased was being dragged by the accused inside the burial ground. He further stated that the distance between the spot where the accused was dragging his father and the tube light was 10 feet and that they were at a distance of about 10 feet. He also stated in the cross-examination that when he and his mother attempted to go to the rescue of his father, the accused took a stone and hit the deceased. The accused came from the front side of his father and hit him. There was none inside the burial ground at that time. After some time, on the suggestion of the passers by, they went to the police station and gave a complaint. P.W. 1 claimed to have signed on some written papers at the police station. P.W. 1 stated that the complaint was given at 10-00 p.m. which is the time recorded in Ex. p-1. When the deceased was being dragged, they did not raise any alarm but his mother questioned the accused in low voice as to why he was doing so.

We do not find any material contradictions or inherent improbabilities in the evidence of P.Ws. 1 and 2. The version of the eye witness-P.W. 1 stands corroborated by the evidence of P.W. 2 who passed on the information to P.W. 1 and his late mother and also the factum of report (Ex. P-1) given by the wife of the deceased within 2 hours after the incident. No doubt the contents of Ex. P-1 do not serve as substantive evidence in support of the prosecution in-as-much-as the maker of the statement died during the pendency of the case. But it can be referred to the limited extent of noting that in the earliest complaint given to the police, the same version of the incident was given. There is no reason to doubt the evidence of P.W. 1 who had no grouse against his maternal uncle. P.W. 1, it may he stated, was examined as an eye-witness during the inquest itself, as deposed by P.W. 9, who is an independent witness. However, one or two circumstances need to be explained. One such circumstance is that there was some time gap between P.W. 2 seeing the accused pushing and beating the deceased at the M. G. brothers'' lorry office and P.W. 1 and his mother reaching the scene of offence on receiving the information from P.W. 2. P.W. 1 stated that the distance between their house and the scene of offence (Muslim burial ground) is about one kilometre. That means, there must have been a time gap of 20 to 30 minutes between the first part of the incident witnessed by P.W. 2 and P.W. 1 reaching the scene of offence with his mother. An argument is possible that the attack against the deceased could not have lasted for so long a time and if the accused wanted to put an end to the life of the deceased, he would have done it within a short while after P.W. 2 watched the incident of the deceased being taken away towards the lane leading to the burial ground. But, it need not be assumed or inferred that the actual attack on the deceased should have necessarily taken place a few minutes after the torture started. The accused, even according to the prosecution case, was in a fully drunken state. The deceased who was also in a state of complete intoxication was not in a position to talk as stated by P.W. 2 and he would not have been in a position to respond to the demands made by the accused. The accused must have been trying to evoke favourable response from him with regard to the collections made on the previous day. The process of beating, abusing and dragging must have continued for quite some time. That is why by the time P.W. 1 and his mother entered the scene, the accused was seen still dragging the deceased. The actual attack according to P.W. 1 took place only after seeing them. On this factual scenario, we see no improbability in the prosecution version that the process of harassment/torture would have continued for some time culminating into actual attack after P.W. 1 and his mother reached the burial ground. The next point which deserves our attention is, the iinitial statement made by P.W. 1 that he also signed on Ex. P-1 and his further deposition that he signed on some other papers in the police station. But, we do not think that these discrepancies in the evidence of P.W. 1 are so material as to discredit the entire testimony of P.W. 1. P.W. 1 being almost an illiterate person coming from a very poor family background, cannot be expected to be so accurate about the details of signing on Ex.P-1. No doubt, the other papers which he purportedly signed are not forthcoming. But he never claimed to have given a statement of his own to the police on the same night. Hence, it is not a case of the police suppressing something which P.W. 1 voluntarily stated before the police. It is, therefore, not proper to brush aside the evidence of P.W. 1 based on the two circumstances adverted to above.

The more fact that P.W. 3, the tea stall vendor and P.W. 4, the rickshaw puller by whose rickshaw P.W. 1 and 2 were alleged to have travelled, have turned hostile does not shatter the prosecution case on the whole or the evidence of the eye witness in particular.

Now, let us see the medical evidence. P.W. 5 is the Deputy Civil Surgeon in Government Headquarters Hospital, Anantapur who conducted autopsy on the dead body on 10-3-1989 pursuant to a requisition received from the investigating officer P.W. 13. He found the following external injuries :

(1) A lacerated injury of 1 1/2" x 1/2" muscle deep present over the right medical epicondyle.

(2) An abrasion of 1/2" x 1/2" present on the lateral aspect of right upper arm over the laternal epicondyle.

(3) Swelling and deformity of right upper arm at its lower third. Diffuse conntusion present.

(4) Lacerated injury of 3/4" x 1/2" muscle deep present on the right eyebrow at its lateral end.

(5) A diffuse contusion of 8" x 4" obliquely extending from left eyebrow backwards involving left temporal and parietal regions. Left xygomatic region is also contused.

(6) A lacerated injury of 2" x 1/2" bone deep present over the right parieto occipital junction. The bone is fractured and opened to outside through which brain matter is seen.

The internal examination revealed the following :

On opening the skull, Haematoma underneath the scalp corresponding to injury No. 5 was noted. Fracture of the frontal bone was present. Fracture of right temporal and right parietal bones was also present. Multiple fractures of bones present in the right temporal and parietal regions. Haemotoma present in the temporal and parietal regions. Brain matter was seen from outside.

Fracture of left parietal and left temporal bones was present. Fracture line was extending upto left parieto-occipital junction. Haematoma over left temporal lobe of the brain present, extending into the left parietal lobe.

Haematoma present over the left xygomatic region. Xygomatic bone was fractured. C.S.F. blood stained.

On dissection of the wound No. 3, fracture humerus (right side) at its lower end 1 "above the elbow joint was present. Haematoma around the wound present.

He deposed that all the injuries were antemortem in nature and the time of death might be 12 to 24 hours prior to conducting post-mortem. P.W. 5 issued the post-mortem certificate which has come on record as Ex.P-4. He then stated as follows :

"Injury No. 1 can be caused due to a fall on a stone if that part comes into contact. Injury No. 2 can be caused due to dragging on the floor and coming into contact with surface. Injury No. 3 is possible by twisting the hand and use of force. Injury No. 4 can be caused due to a fall on a stone. Injuries 5 and 6 can be caused by hitting with a stone similar to M.O. 1. All the injuries are sufficient to cause death in the ordinary course of nature. Injuries 5 and 6 are fatal."

In cross-examination, when questioned by court, he stated that a minimum of two blows and several falls could have caused these injuries. He also stated that he did not find any injury over the neck of the deceased. He further stated that the deceased might have been suffering with lung disease. The evidence of P.W. 5 read with Ex. P-4 postmortem certificate supports the eye-witness''s account that the deceased died of homicidal death on account of hitting with a stone. We get it from Ex. P-7 inquest report that the stone was fairly big in size with a width of 2'' and length of 2''10" on one side and 1''on another side. Evidence was let in by examining P.W. 10, a gold-smith by profession and the investigating officer P.W. 13 that on account of rain in the night, the blood stains on the stone (M.O. 1) were got washed off.

On the basis of the evidence on record as discussed above, we have no doubt in our minds that the prosecution has proved that the accused-appellant alone was responsible for causing the death of his uncle Dudekula Imam Saheb on the night of 9-3-1989 at Muslim burial ground, Anantapur town.

The next question is what is the offence committed by the accused. The prosecution, as already stated, filed the appeal against the acquittal of the accused u/s 302 of I.P.C. and instead, convicting him u/s 304 Part-1 of I.P.C. No reasons were assigned by the Sessions Judge for convicting the accused u/s 403 Part-I, I.P.C except stating that the deceased and the accuser were in a drunken state. But the learned Sessions Judge missed to note that voluntary intoxication by itself does not absolve the offender against the consequences of his violent attack nor does it have the effect of making him liable for a lesser offence. The learned counsel for the appellant, relying upon the decision of the Supreme Court in Gurdip Singh and Another Vs. State of Punjab, contended that there was no intention to kill the deceased and it all happened without any pre-meditation and, therefore, it is proper to convict him u/s 304 only. But the mere absence of intention to cause the death by itself is not conclusive to exonerate the accused of a charge u/s 302 I.P.C. We cannot understand that decision as laying down any such proposition of law. It should not be forgotten that under Clause (3) of Section 300 of I.P.C., an intention to cause death need not be there. An intention to cause the bodily injury that was inflicted and such injury being sufficient in the ordinary course of nature to cause death, brings the offence under culpable homicide amounting to murder. The latter part of ingredient is to be judged by an objective assessment. This analysis of Section 300 is so well-settled by a catena of decisions that it does not need citations starting from the judgment of Bose, J in Virsa Singh Vs. The State of Punjab, .

The learned public prosecutor has contended that the injuries inflicted were more than one and having regard to the size of the stone used and the severity of wounds inflicted, the case clearly falls under Clause-3 of Section 300 I.P.C., even assuming that the accused had no intention to cause the death. On a consideration of the material evidence on record and the probabilities, we are not inclined to agree with the submission of the learned Public Prosecutor and alter the conviction into one for the offence of murder though the consideration which weighed with the learned Sessions Judge is an irrelevant one. In a case where the trial court convicted the accused of in offence u/s 304 Part-I. we must be slow in finding him guilty for a graver offence of murder, unless the facts and circumstances clinchingly establish that the case falls under any of the clauses of Section 300 I.P.C. The fact that the accused had no intention to kill the deceased cannot be and has not been seriously disputed. Both of them got drunk and after getting into a state of inebriation, they were found quarrelling and pushing each other by P.W. 2. The accused was not armed with any weapon. He would not have been prompted by a motive to put an end to the life of his uncle. Apparently, he intended to teach a lesson by using bodily force against him and with that objective in mind, he went on beating the deceased with hands and dragging him when he fell on ground. If the accused wanted to kill the deceased then and there, he would not have waited for so long. It was only after P.W. 1 and his mother (the sister of the accused) came to the scene of offence and on seeing them, the accused suddenly picked up a stone lying there and gave him a blow or two and ran away in a huff. Taking the back-ground and the circumstances as a whole, we are unable to discern an intention to kill the deceased. Even then, as already observed, the absence of intention does not take the offence out of the purview of Section 300, unless it could be said that the accused did not intend to cause the particular bodily injury or injuries which, according to the doctor, were fatal. According to P.W. 5, the Deputy Civil Surgeon, injuries 5 and 6 were fatal injuries. But his evidence is not clear as to whether each of them was a fatal injury by itself. He stated in general terms that "all the injuries are sufficient to cause death in the ordinary course of nature". He then stated that injuries 5 and 6 were fatal. Thus, it appears to us from the medical evidence that the cumulative effect of injuries 5 and 6 resulted in the death of the deceased and that injuries 5 and 6 both put together were sufficient to cause death in the ordinary course of nature. Scanning the evidence further, we are of the view that the accused intended to cause injury No. 5 and he aimed to hit with stone at the back of the head of the deceased which caused contusion of 8" x 4" obliquely extending from left eye brow back-wards. The effect of that injury was to damage the skull and to cause haematoma underneath the skull. As already noticed, there is no clear and categorical evidence to the effect that this injury which was broadly described as a fatal injury by P.W. 5 could by itself be sufficient in the ordinary course of nature to cause death. The 6th injury which is a lacerated injury of 2" x 1/2" bone deep present over the right parito occiptal junction causing the fracture of right temporal parietal bones through which brain matter was seen is, no doubt, a fatal injury, as opined by the doctor. But, in our view, it cannot he said definitely that the said injury would have been intended to be inflicted by the accused. That injury was caused on account of dropping of the stone (which is noted in the deposition as ''hurling'') more as a result of panic reaction of the accused after seeing P.W. 1 and his mother rather than a conscious effort on his part. Immediately after hearing the protestations of his sister, he gave a blow with the stone and then dropped it on the person of the deceased. Though it landed and hit on a vital part, an intention to cause injury No. 6 on that vital portion might not have been his intention. In his anxiety to hit and get away from the scene, he might have unwittingly dropped the stone. A reasonable doubt is not ruled out whether by dropping the stone, the accused intended to inflict injury again on the head of the deceased. We are inclined to think that it was a case of aimless hurling of stone rather than targetting it again on the head of deceased. It is also relevant to notice that it was night time and although there was a tube light nearby at a distance of about 30 feet, as spoken to by P.W. 13 (Investigating Officer), it is somewhat doubtful whether the accused could have had a clear visibility. The possibility of the stone landing on the head when he simply intended to drop it over his body somewhere cannot be ruled out, in view of this doubt, we find it difficult to accept the argument of the learned Public prosecutor that the accused committed the offence of murder. By inflicting injury No. 5, the accused must have had the intention of causing such bodily injury as was likely to cause death and by dropping the stone resulting in injury No. 6, the accused must have had knowledge that he was likely, by such an act, to cause death. Thus, Section 304 Parts-I and II read with Section 209 of the Indian Penal Code are attracted in the instant case. We derive support for our view from the decision of the Supreme Court in Harjinder Singh alias Jinda Vs. Delhi Administration, though the facts may not be exactly identical. Taking an overall view, we are not inclined to disturb the conviction and sentence u/s 304 Part-I of the Indian Penal Code. We, therefore, see no merit in the appeal filed by the prosecution.

In the result, both the criminal appeals are dismissed and the conviction and sentence u/s 304 Part-I of the Indian Penal Code is hereby confirmed, though for different reasons.

Appeals dismissed.