Keshava Rao vs State

Joymalya Bagchi, J

The appellant has approached this Court challenging a judgment and order of conviction and sentence convicting him for commission of offences under sections 304 Part-II/451 of Indian Penal Code and directing him to suffer rigorous imprisonment for five years and to pay fine of Rs.5000/- in default to undergo rigorous imprisonment for six months more for the offence punishable under section 304 Part II of IPC and to suffer rigorous imprisonment for six months and fine of Rs.1000/- in default to suffer rigorous imprisonment for one month more for the offence punishable under section 451 of IPC, both of which are to run concurrently.

Gist of the prosecution case is to the effect that on 8th October, 2006 relations of the appellant had objected to one Dhan Laxmi (PW.4) breaking the queue to avail medical treatment at the hospital. Over this issue, two days later on 10th October, 2006 at 7.30 PM the appellant along with his brother Kurma Rao (co-accused), in drunken condition came to the house of Venkat Ramaiah (PW-2) (husband of Dhan Laxmi) and started assaulting him. His brother P.Gopalswamy (PW.1) intervened and was also assaulted. At that time, women folk of the family i.e. Dhan Laxmi (PW.4) (wife of Venkat Ramaiah) and Sujata, the deceased (wife of P.Gopal Swami) intervened. The appellant kicked at the abdomen of Sujatha who fell down at the spot. Immediately thereafter, she was taken to hospital where she was declared dead. Sujatha was in the family way at the time of occurrence. On the statement of P.Gopal Swami, Billiground PS Case No.58 of 2006 dated 10th October, 2006 under sections 451, 304 and 323/34 IPC was registered against the appellant and his brother, Kurma Rao. Charges were framed under sections 304, 451 and 323 IPC against the aforesaid accused persons. Prosecution examined 18 witnesses and exhibited a number of documents in support of its case. The defence of the accused persons was one of innocence and false implications. In conclusion of trial, the trial Judge by the impugned judgment and order convicted and sentenced the appellant, as aforesaid. However, by the selfsame order the co-accused Kurma Rao was acquitted of the charges levelled against him.

Mr.D.Ilango, learned counsel appearing for the appellant strenuously argued that the prosecution case ought to not be believed as the independent witnesses namely, PW.5 and PW.8 claimed that the family members of the victim had told them that the victim had suffered injuries due to fall. PW.3, the daughter of PW.2 also did not support the prosecution case. He further argued that a number of injuries were found on the body of the appellant which had not been explained by the prosecution. Hence, manner and course of the prosecution case as narrated by its witnesses do not appear to be credible. On the other hand, the chance of accidental fall of the victim cannot be wholly ruled out. Hence, the appellant is entitled to an order of acquittal.

On the other hand, Mr.Mandal, learned senior counsel appearing for the State argued that prosecution case has been established through the evidence of eye witnesses, P.W.1, PW.2 and PW.4. Their ocular version is corroborated by the medical evidence of PW.16. Hence, the appeal is liable to be dismissed.

I have considered the evidence of the eye witnesses namely, PW.1, 2 and 4. All the witnesses in unison claimed that the appellant on the fateful day had come to their house and had started assaulting PW.2, Venkat Ramaiah. When his brother Gopal Swami (PW.1) intervened, he was assaulted too. At this juncture Sujatha (the deceased) and Dhan Laxmi (PW.4) wife of Venkat Ramaiah intervened. The appellant kicked at the belly of Sujatha. As a result, she suffered extensive internal injuries and died. Evidence of the eye witnesses find credence from version of PW.16 Dr.M.Joy who conducted postmortem over the body of the victim and found the pertonial cavity on the left side of her abdomen under the rectal sheet filled with blood and her left kidney ruptured. He opined that cause of death was due to the injuries sustained and the consequential shock. Injuries were sustained due to forceful impact on the abdominal wall with some blunt object as no external injuries were seen on her body. In cross-examination, he stated though the name of assailant was not mentioned, it was alleged that the deceased was kicked in the abdomen.

It has been argued on behalf of the appellant that the victim had fallen down in course of a melee and had suffered injuries resulting in her death. In this regard, reference was made to the version of PW5 and PW 8. I am unable to give credence to the version of PW 5 and 8 who are reported witnesses. They claimed that they had heard about the incident from PW 1 and other family members of deceased. None of the family members have corroborated their version. Hence, their evidence are hearsay and inadmissible. That apart, Dr. M. Joy (PW 16) deposed that it had been alleged that victim had been kicked in her abdomen resulting in fatal injuries. PW 3, a minor was tendered in cross examination and nothing could be elicited from her to discredit the version of the eye witnesses PW 1, 2 and 4. However, from the evidence of PW 16 and the injury report (exhibit 14), I find that the appellant had suffered a number of injuries on his head and body in the course of incident. Presence of the said injuries, in my considered opinion, does not discredit the prosecution case in toto. On the other hand, it gives an impression that the appellant and the eye witnesses, namely, PW 1 and 2 were indulging in a free fight and in the course of such fight when the women folk intervened the appellant had kicked the deceased in the stomach. I am in agreement with the learned counsel for the appellant that there is no evidence on record to show that the appellant was aware that the victim was pregnant at the material point of time. However, it cannot be denied that the appellant had kicked the lady with considerable force causing extensive internal injuries and bleeding in her abdomen including rupture of her left kidney. Hence, there is no escape from the conclusion that the appellant had knowledge that his act was likely to cause death although he may not have been aware of the pregnancy of the victim at the time of occurrence.

In the light of the aforesaid discussion, I have no hesitation to uphold the convictions recorded against the appellant.

Coming to the issue of sentence, I am of the opinion that the sentence imposed on the appellant on the charge under section 304 Part-II IPC requires to be modified. The incident occurred in the course of a free fight where the appellant had also suffered bodily injuries. In the course of the melee, the appellant had kicked at the victim possibly to save himself from further injuries. Although, his assault on the deceased was severe and disproportionate and in the facts of the case would infer requisite culpable knowledge with regard to the likelihood of causing death of the victim, the other attending facts and circumstance of the case clearly rule out any intension on his part to commit murder or his awareness of the pregnancy of the victim lady at the time of occurrence. He also does not have any criminal antecedents. Balancing the aggravating and mitigating facts and circumstances of the case, I am of the opinion that interest of justice would be served if the sentence imposed on him for the offence punishable under section 304 Part II IPC is modified and he is directed to suffer rigorous imprisonment for a period of three years and to pay fine of Rs.5000/- in default to undergo rigorous imprisonment for six months more. The sentence imposed on him under section 451 IPC remains unaltered. Both the sentences to run concurrently. The period of detention suffered by the appellant during investigation, inquiry and trial shall be set off from his substantive sentence under section 428 Cr. P.C.

The appeal is accordingly disposed of.

Let the Lower Court records be sent down.

The bail bond of the appellant is cancelled and he is directed to surrender before the Trial Court within a week from date and serve out the remainder period of the sentence in accordance with law, failing which the Trial Court shall resort to appropriate processes to execute the sentence.