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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1132 OF 2009
Thammu Panduranga Rao & Anr. … Appellant(s)
versus
State of Andhra Pradesh … Respondent(s)
J U D G M E N T
M.Y. Eqbal, J.:
The present appeal by special leave is directed against the
judgment and order dated 9th October, 2007 passed by the High Court
of Judicature of Andhra Pradesh partly allowing Criminal Appeal No.
1187 of 2002 filed by the appellants herein (accused Nos. 1 and 2) by
inter alia modifying the conviction of accused Nos. 1 and 2 for the
offence under Section 304 IPC into conviction for the offence under
Section 304(2) IPC and reducing the sentence of rigorous
imprisonment of 10 years to three years in respect of both the accused
and the sentence of rigorous imprisonment of four years for the
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offence under Section 325 IPC in respect of accused No. 2 to one
year.
2. The case of the prosecution which led to the conviction of
accused Nos. 1 and 2 is that the deceased Boddu Maraiah and
accused No. 2 were having prior disputes between them. The son of
said accused loved the daughter of the deceased. As the elders did
not agree to the proposal, the deceased married his daughter to some
other person. Even after her marriage, the son of accused used to go
to her house and tried to create problems in her married life, because
of which the son of accused was beaten by the deceased and his
family members which became the subject matter of a criminal case.
Thus, it was alleged that there was inimical term between the two
families. On 2.11.1998 at about 5.30 p.m., while accused Nos. 1 to 5
(A-1 to A-5) (accused No. 4 is son of accused No. 2; accused No. 2 is
the nearest relative of accused No. 1; accused No. 3 is his son; and
accused No. 5 is a close relative of accused Nos. 1 to 4) were
returning to their village after finishing their fishing work and when they
reached near the cattle shed of the deceased, they heard PW-2 (wife
of deceased) abusing her cattle sarcastically. All are stated to be
residents of Ramannamodi. The accused suspected that PW-2 was
abusing them. On PW-2 being questioned by A-2 as to why she was
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abusing them, the deceased interfered and attacked A-2. A-1 also
interfered and the deceased beat him whereupon A-1 beat the
deceased on his head with a stick and induced A-2 to A-5 to beat the
deceased. A-2 beat the deceased by poking against his abdomen
with stick near his naval, A-3 beat him on his back with a stick, A-1
and A-4 beat PW-2 with sticks and caused injuries and A-1 and A-4
beat PW-1 (son of deceased) on his left hand wrist and on his neck
with sticks. After beating the deceased, PW-1 and PW-2, the
accused ran away from the place of occurrence. Later PW-1 went to
police station and registered a complaint (Ex.P-13) and a case under
Section 324/34 IPC was started. The deceased, PW-1 and PW-2
were sent to the Government Headquarters Hospital, Machilipatnam.
After the deceased succumbed to injuries on 4.11.1998 in the hospital,
the police altered the FIR to Section 302 IPC and took up
investigation, held inquest over the dead body, observed the scene of
offence, conducted panchnama, got the post mortem examination
done and after receipt of post mortem report laid the chargesheet
under Section 302/34 IPC against A-1 and A-2, under Section 325
against A-2, under Section 323 against A-1, A-4 and A-5 and under
Section 114 against A-5. In support of its case, the prosecution
examined PWs 1 to 14, marked Exhibits P-1 to P-23 and also MOs 1
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to 26. No defence witness was examined but Exhibits D-1 to D-9 were
marked on their side.
3. PW-9 Dr. K. Sanjeevarao who held inquest over the dead
body and issued post mortem certificate opined that the deceased
died of shock due to rupture of mesenteric vessel and damage to the
intestines. The doctor stated that the injuries mentioned in the
certificate would have been caused with sticks like MOs1 to 5 and that
the internal injuries 2 and 3 were sufficient to cause the death in the
ordinary course of nature. The following external injuries were found
on the dead body:
1. A three sutured injury 1 ½” in length on the right parietal
region.
2. A blue black abrasion 3” x ¼ “ on the right shoulder.
3. A blue black abrasion 1” x ¼ “ over the left loin.
4. A black abrasion 1” x ½ “ on the back of right lumber
region.
5. A blue black abrasion 1 ½ “ x 1” on the back and left
lower part of the chest.
4. On internal examination, the doctor found (1) about 2 ½
litre of blood present in the abdominal cavity and ½ litre of blood
present in the pelvic cavity, hemoperitoneum present and all the
intestines congested; (2) bluish contusion 6” x 1” on the middle third
of small intestine; (3) the mesentance vessels ruptured and the entire
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mesentery blood stained; (4) three bluish blood clots each 30 grams
on the mecentary near the superior mesenteric artery; (5) all the
internal organs like liver, both the lungs, spleen and both the kidneys
congested; (6) the stomach empty and its mucosa congested; (7) the
brain and its menings congested; (8) hyoid bone intact; (9) urinary
bladder and the gall bladder empty; and (10) the chambers of the
heart empty. The doctor opined that the deceased appeared to have
died of shock due to rupture of mesenteric vessels and contusion of
the intestines and death would have been occurred within 24 hours
prior to the post mortem examination and Ex.P-7 is the post mortem
certificate he issued. The injuries mentioned in Ex.P-7 would have
been caused with sticks like MOs.1 to 5 and that the internal injuries 2
and 3 are sufficient to cause the death in the ordinary course of
nature.
5. As regards injuries to PW-1 and PW-2, PW-8 Dr. M.
Polaiah who medically examined PW-1 and PW-2 stated in his
deposition that he was of the opinion that injury No. 1 i.e. “Swelling
deformity of lower third of left forearm. Tender” caused to PW-1 was
grievous in nature and injury No. 2 i.e. “Abrasion of 1” x ¼ “ over the
anterior of triangle of left side of neck. Bleeding present” was simple
in nature and those injuries could have been caused with sticks. As
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regards injuries i.e. “Swelling deformity of left hand and Contusion of
1” x 2” over right shoulder blade”, the doctor opined that the said
injuries were simple in nature and could have been caused with sticks
as alleged.
6. The trial court on consideration of testimony of the
witnesses held that a case has been made out against A-1 and A-2
(appellants herein) finding them guilty for the offences under Sections
304/34, 324/34 and 325 IPC. Accordingly, they were convicted for the
offence under Section 304 IPC and sentenced to undergo rigorous
imprisonment for 10 years and in default to suffer simple imprisonment
for three months. A-1 was further convicted for the offence under
Section 323 IPC and sentenced to undergo rigorous imprisonment for
six months. A-2 was further convicted under Section 325 IPC and
sentenced to undergo rigorous imprisonment for four years and also to
pay a fine of Rs.500/- and in default to suffer simple imprisonment for
two months. A-4 and A-5 were sentenced to pay fine of Rs.1,000/-
each, in default to suffer simple imprisonment for two months. All the
sentences imposed on respective accused were directed to run
concurrently. A-3 had died on 5.12.1998 due to ill health while under
judicial custody. In arriving at its conclusion as regards conviction and
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sentence of A-1 and A-2 (appellants herein), the trial court gave the
following reasoning:
“21. …..The oral evidence and medical evidence on record
clinchingly proved that on account of injuries caused by A-
1 and A-2 the deceased died, especially the injuries
caused by A-2. But the common intention of A-1 and A-2
in beating the deceased is clear. Whether they intended
to kill him is doubtful, though PW-1 stated in his evidence
that the accused uttering `SACHADU NA KODUKU’ went
away because that material aspect was not mentioned by
him in Ex. P-1 or he stated the same before the Police.
The deceased also did not mention in Ex.P-20 that the
accused left the scene of offence uttering so. Therefore,
the intention to cause death to the deceased on the part of
A-1 and A-2 cannot be inferred from the circumstances but
the subtle situation led each party to self provocation.
Consequently A-1 and A-3 beat the deceased as well as
PWs-1 and 2. In fact on both sides there was no intention
or preparation for the quarrel. It was a sudden and
unexpected quarrel that arose on account of bitter enmity.
Passions roused on seeing each other. Both sides
plunged into a free fight. So it can be safely held that A-1
and A-2 in furtherance of common intention beat the
deceased Maraiah which injuries caused his death in the
ordinary course of nature. It cannot be held that they have
committed the offence u/s 302 r/w section 34 IPC, but they
have committed an offence punishable u/s 304 r/w section
34 IPC, in other words culpable homicide not amounting to
murder.
22. … it has been established beyond doubt that on
account of the injury caused by A-1, the left hand of PW-1
was broken. Not only a reading of Ex.P-1 but also a
reading of Ex.P-20 coupled with the oral and medical
evidence on record this offence against A-1 u/s 325 IPC
has been established.
xxx xxx xxx
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24. It is the case of the prosecution that A-1 and A-4 beat
PW-2 and caused her two simple injuries with sticks. PW-
2 received injuries on her left hand and right shoulder
blade. The evidence of PW-8 and the wound certificate
Ex. P-6 corroborates the evidence of PW-1 and PW-2. In
Ex. P-1 and P-20 also these injuries caused to PW-2 were
attributed to A-1 and A-4. Thus, it has been established
by the prosecution that A-1 and A-4 beat PW-2 and
caused injuries to her by beating with sticks punishable u/s
323 IPC.”
7. Aggrieved by the judgment of the trial court, A-1 and A-2
(appellants herein) preferred an appeal before the High Court and
contended that as their guilt was not proved beyond all reasonable
doubt, their conviction and sentence ought to be set aside. The High
Court after going through the entire material on record held that the
lower court gave sufficient reasons as to why the respective accused
were convicted for the offences under various Sections of IPC;
cumulative effect of the injuries led to the death of the deceased and
A-1 being the person who participated in the commission of the
offence was also having common intention to attack the deceased;
there was no ground to interfere with the conviction of the accused for
the offences under Sections 304, 325 and 323 IPC; and conviction
under Section 304 could be brought under Section 304(2) IPC and
accordingly modified the same. After taking into consideration the
motive behind the incident, the nature of weapons used and the
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circumstances, the High Court was of the view that the accused did
not use sharp edged weapons to kill the deceased but they caused
injuries with a knowledge that they are likely to cause the death. In the
result, the appeal of A-1 and A-2 (appellants herein) was partly
allowed by the High Court as mentioned hereinbefore. Finally the High
Court held:-
“By taking into consideration the motive behind the
incident, the nature of weapons used and the
circumstances explained by the learned defence counsel, I
am of the view that the accused did not use sharp edged
weapons to kill the deceased, but they caused injuries with
a knowledge that they are likely to cause the death. As
the offence under Section 304 I.P.C. was brought under
Section 304(2) I.P.C., the sentence of imprisonment
imposed on the accused is excessive. Therefore, I am
inclined to reduce the sentence imposed against the
accused for the offence under Section 325 I.P.C.
Therefore, the sentence imposed against Accused No.2
for the offence under Section 325 I.P.C. is reduced.
In the result, the appeal is allowed in part. The
conviction of Accused Nos. 1 and 2 for the offence under
Section 304 I.P.C., is modified into conviction for the
offence under Section 304(2) I.P.C. Regarding Rigorous
Imprisonment, it is reduced to rigorous Imprisonment of
three years to each of the accused. The fine and default
sentence remain un-altered. The conviction of Accused
No.1 for the offence under Section 323 I.P.C., and the
sentence of Rigorous Imprisonment for six months is
confirmed. Conviction of Accused No.2 for the offence
under Section 325 I.P.C., is confirmed, but the sentence of
rigorous imprisonment of four years is reduced to
Rigorouos Imprisonment of one year. The fine amount
remains un-altered. All the sentences of imprisonment
against each of the accused shall run concurrently.”
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8. Mr. Venkateswara Rao Anumolu, learned counsel
appearing for the appellants assailed the impugned judgment of the
High Court mainly on the ground that the conviction and sentence
cannot be sustained as the injuries were inflicted by the appellants
while exercising their right of private defence. Admittedly, the accused
–appellants were on inimical terms with the deceased and the
witnesses. Learned counsel drew our attention to the injuries
sustained by the parties and the report of the doctor and submitted
that in the facts and circumstances of the case, the impugned
judgment of conviction is liable to be set aside.
9. Mr. Shishir Pinaki, learned counsel appearing for the
respondent, on the other hand, submitted that the evidence of the
prosecution witnesses including the injured witnesses and the injuries
inflicted on the deceased completely ruled out the application of right
of private defence.
10. It is the cardinal principle of law that everyone has a right
to defend his own person and property but the right of private defence
cannot be exercised for causing more harm than necessary or for
taking revenge. Such right of private defence must be used as a
shield to avert an attack and it should not be vindictive and cannot be
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used to retaliate. In no case the right of private of defence extends to
the inflicting of more harm than it is necessary to inflict for the purpose
of defence.
11. From analyzing the evidence on record which has already
been noticed by the trial court, it is clear that appellant No.1(A-1) beat
PW-1 on his right wrist with a stout stick with the result his hand
broken. A-5 also beat him on the right side of the neck with a stout
stick. Then the deceased interfered. He tried to rescue his son. Then
A-1 gave a blow on his head with stout stick and caused a bleeding
injury. To rescue the deceased, PW-2 interfered; then A-1 and A-4
beat her with sticks on her hands and back and caused injuries.
Though the deceased was already beaten on his head when his wife
was being beaten by A-1 and A-4, he again mustered his strength and
tried to interfere when A-2 poked with a stick on his abdomen and A-3
beat him with a stick on his back and gave two blows. In fact the
deceased in his statement before the Police under Ex.P-20 said that
A-2 did not simply poke in his abdomen by the side of his naval with a
stick but in fact he pounded at his abdomen with the stick. In other
words, in vernacular ‘KULLA BODICHI NADU’ in fact this is the injury
that led to the death of the deceased because the intestines were
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ruptured and bleeding took place internally and serious damage was
caused to the vital organs inside and caused the death of the
deceased.
12. The High Court has fully gone into the evidence of the
witnesses examined and injuries sustained by the deceased and PW-
2 and came to the conclusion that the cumulative effect of the injuries
led to the death of the deceased and appellant No.1 being the person,
who participated in the commission of the offence, was also having
common intention to attack the deceased. However, the High Court in
the facts and circumstances of the case modified the order of the
conviction and sentence.
13. Considering the entire facts and circumstances of the case
and the evidence available on record, we do not find any reason to
interfere with the impugned judgment of conviction and sentence
passed by the High Court.
14. For the reasons aforesaid, there is no merit in this appeal,
which is accordingly dismissed. The bail bonds of the accused-
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appellants stand cancelled. They shall surrender forthwith to serve
out the remaining period of the sentence.
……………………………..J.
(P. Sathasivam)
……………………………..J.
(M.Y. Eqbal)
New Delhi,
April 26, 2013.
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