(Prayers: Appeal under Section 372/374(2)/378(4) of Cr.P.C praying that the High Court may be pleased to to allow the criminal appeal by setting aside the calendar and judgment dated 28-08-2017 passed in SC.No. 161 of 2016 on the file of the court of the learned IV Addl. District and Sessions Judge, Tanuku and acquit the appellant of the charge for which he was convicted and sentenced.

IA NO: 1 OF 2018

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to condone the delay of 174 days in filing the present criminal appeal as against the judgment dated 28-08-2017 passed in SC.No. 161 of 2016 on the file of the court of the learned VI Addl. District and Sessions Judge, Tanuku and to receive the main criminal appeal on file in the interest of justice.

IA NO: 2 OF 2018

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant bail to the petitioner by suspending the calendar and judgment dated 28-08-2017 passed in SC.No. 161 of 2016 on the file of the court of the learned IV Additional District and Sessions Judge, Tanuku.

IA NO: 1 OF 2022

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased pleased to grant bail to the petitioner/Appellant herein by suspending the operation of conviction and sentence imposed by the learned IV Additional District and Sessions Judge, Tanuku, vide its Judgment Dt.28.08.2017 in S.C. No.161 of 2016 on the file of the IV Additional District and Sessions Judge, Tanuku, pending disposal of the main Criminal Appeal and pass)

Subba Reddy Satti, J.

1. The sole accused in Sessions Case No.161 of 2016 on the file of the Court of IV Additional District and Sessions Judge, Tanuku, is the appellant. He was tried and convicted by the learned Additional Sessions Judge under Section 302 IPC and was sentenced to suffer Rigorous Imprisonment for life and also to pay a fine of Rs.2,000/-, in default, to undergo Simple Imprisonment for six months.

2. The substance of the charge is that on 15.11.2014, between 9:00 p.m. and 11:00 p.m., at Sri Lakshmi Wine Shop, Tanuku, the accused caused injuries to Boddani Adinarayana @ Bujji (hereinafter referred to as ‘the deceased’), by beating and fisting with hands and kicking him, thereafter the accused took the deceased in his auto to a road opposite to the Andhra Sugars and again beat him indiscriminately, and later dropped the deceased at his house in the wee hours of 16.11.2014, the family members of the deceased provided first aid and thereafter, at 6:00 a.m. on 16.11.2024, they tried to shift the deceased to hospital for treatment, however, the deceased succumbed to the injuries and thereby committed offence punishable under Section 302 IPC.

3. The case of the prosecution, as emanated from the evidence of the prosecution witnesses, in brief, is that:

               (i) P.W.1, P.W.2 and P.W.3 are mother, wife and elder brother of the deceased respectively. P.W.2 went to her parents’ house due to some differences with the deceased. The deceased initially worked in petrol bunk for some time and later worked in a Pan shop. Thereafter the deceased joined as a lorry cleaner four days prior to 15.11.2014 and went to Hyderabad. He returned home in the afternoon of 15.11.2014. On 15.11.2014, the deceased went to a wine shop at Tanuku, at about 8:00 p.m. The accused also came to the wine shop to purchase liquor, and when the accused, in a loud voice, informed the cashier that he would pay the money, the deceased questioned him, on which the accused pushed the deceased aside. The people present there intervened and separated them. The deceased abused the accused in filthy language, and the accused came back and beat him. Later, both of them left the place.

               (ii) At about 10:00 p.m. on 15.11.2014, the accused and the deceased went to the shop of P.W.13 and purchased cigarettes. Thereafter, P.Ws.10 and 11 witnessed the deceased and the accused talking to each other on the opposite road of Andhra Sugars. P.W.14, a driver by profession, observed a person lying on the ground and another person with a khaki shirt, at the gravel road opposite to Andhra Sugars. He also observed the auto bearing No.AP 37 TD 1464 stationed there.

               (iii) On 16.11.2014, at about 4:00 a.m. P.W.1 heard a sound of a bucket falling and opened the door. She found the deceased lying at the doorstep. P.W.1 and her husband took the deceased inside. The deceased was moaning, and P.W.1 noticed injuries all over the body. P.W.1, with the help of her husband, removed clothes and dressed the deceased with a blue colour lungi and a white towel. They called P.W.6, Nurse in the Health Centre. P.W.6, visited the house and gave an injection at 4:30 A.M. Thereafter, P.W.1 informed the condition of the deceased to P.W.3, who, in turn, requested P.W.7, a PMP Doctor. P.W.7 came and examined the deceased and advised taking him to a hospital for better treatment. When P.W.1, along with her husband, was taking steps to shift the deceased in an auto, they observed the deceased died.

               (iv) P.W.18, S.I. of Police, Undrajavam Police Station, received the report submitted by P.W.1 on 16.11.2014 and registered a case in crime No.196 of 2014 for the offence punishable under Section 302 I.P.C. He sent the F.I.R. to all the concerned. Ex.P12 is the F.I.R. At about 11:45 a.m., he proceeded to the house of P.W.1 at Palangi. He secured the presence of P.W.16 and another and prepared the scene observation report and rough sketch, Exs.P9 and P13, respectively, at the house of P.W.1 at Palangi. He also got the scene of offence photographed through P.W.8, photographer. Photographs were marked as Ex.P2. He examined P.Ws.1 to 5 and others and recorded their statements. Later, he held inquest over the dead body in the presence of P.W.16 and other blood relatives. The Inquest report is marked as Ex.P10. He also seized M.Os.2 to 4 and 9. Later, he shifted the dead body to the Government Hospital, Tanuku, for postmortem examination.

               (v) P.W.15, Civil Assistant Surgeon, CHC Tanuku, conducted autopsy, on 18.11.2014, over the dead body and issued postmortem certificate, Ex.P4. Initially, no opinion was expressed by P.W.15 regarding the cause of the death. Opinion for cause of death was reserved, pending the report of RFSL, Vijayawada. After receipt of reports, Exs.P5 to P7, from APFSL, Vijayawada, he issued post-mortem certificate, dated 02.04.2015, Ex.P8. He opined the cause of death was due to asphyxia secondary to ante mortem chest injury.

               (vi) On 17.11.2014, P.W.18 examined P.Ws.6 to 9 and recorded their statements. He, along with P.W.9, caused a search for the accused. During the investigation, P.W.18 visited Sri Lakshmi Wine Shop, Tanuku. He examined P.Ws.10 to 12 and recorded their statements. He also examined P.W.13 and others and recorded their statements. Later, he handed over the investigation to the C.I. of Police, Tanuku.

               (vii) P.W.19, C.I. of Police visited the scene of offence along with P.W.18. He perused the C.D. file and found it on the correct lines. On 27.11.2014, on receipt of credible information, P.W.19, along with P.W.18 and staff by securing the presence of P.W.16 and another person went to Akula Sreeramulu Engineering College situated at Tanuku. He apprehended the accused. The witnesses identified the accused, and the accused confessed to the crime. P.W.19 recorded the statement of the accused in the presence of mediators. Ex.P11 is the mediators’ report. He seized the auto bearing No.AP 37 TD 1464, khaki pant and shirt, M.Os.5, 7 and 8, respectively. P.W.19 arrested the accused later, the accused was remanded to judicial custody.

4. In support of its case, the prosecution examined PWs.1 to 19, marked Exs.P1 to P13 and exhibited M.Os.1 to 9.

5. When the accused was examined under Section 313 Cr.P.C., he denied the incriminating evidence appearing against him.

6. Believing the evidence of PWs.1, 6, 7 and 10 to 13, the learned Additional Sessions Judge convicted the accused as foresaid.

7. Heard Akurathi Rama Krishna, learned counsel for the appellant and Sri Marri Venkata Ramana, learned Additional Public Prosecutor for the respondent-State.

8. Learned counsel for the appellant would contend that the prosecution rests its case on the last seen theory and circumstantial evidence. The prosecution failed to prove each link of the circumstances beyond a reasonable doubt. He would submit that P.W.14 is a planted witness. He would also submit that the deceased came home in the wee hours and, on finding some injuries, P.W.1 called P.W.6, who in turn provided first aid. He would submit that P.W.6, did not observe any serious injuries sustained by the deceased at the time of treatment, and she observed liquor smell from the deceased. P.Ws.10 to 13, in their evidence, narrated the incident happened at the wine shop only. He would further submit that the prosecution failed to connect the accused to the crime and thus, prayed to set aside the conviction and sentence.

9. On the other hand, the learned Additional Public Prosecutor would contend that the accused beat the deceased indiscriminately at Sri Lakshmi Wine Shop and thereafter assaulted him on the road opposite to Andhra Sugars. The deceased sustained multiple injuries, due to which he succumbed to injuries, and the prosecution proved the guilt of the accused beyond a reasonable doubt. Thus, prayed to dismiss the appeal.

10. We have carefully analyzed the evidence available on record.

11. P.Ws.1 to 5, the relatives of the deceased did not speak about the fight between the accused and the deceased. The prosecution examined P.Ws.10 to 13 to establish the fight, and the accused beating the deceased at Sri Lakshmi Wine shop. The prosecution also examined P.Ws.10 and 11 to prove that they witnessed the accused talking with each other at Andhra Sugars. The prosecution examined P.W.14, a driver by profession, to speak about his observing a person lying on the road and another person wearing a khaki dress and an auto bearing No. AP 37 TD 1464 at the gravel road opposite Andhra Sugars. The prosecution examined P.W.9 to establish that the accused dropped the deceased at his house; however, P.W.9 did not support the version of prosecution.

12. Thus, as seen from the evidence of P.W.10 to 13, the prosecution established the altercation and fight between the deceased and the accused at Sri Lakshmi Wines at about 8:00 p.m. on 15.11.2014, and further, the deceased blamed the accused in filthy language, and thereafter the accused beat the deceased. As per the evidence of P.Ws.10 to 13, they intervened and separated both the accused and the deceased. The evidence of P.Ws.10 to 12 would disclose their witnessing the deceased and the accused while they were talking with each other at Andhra Sugars.

13. P.Ws.10 to 12 testified that initially the accused pushed the deceased aside, and the persons in the shop intervened and separated them. Later, the deceased started abusing the accused in filthy language, due to which the accused came back and again beat the deceased, and they were separated again. Thereafter, both the deceased and the accused left the place. Thus, the accused beat the deceased when he started abusing the accused in filthy language, and no weapon was used by the accused.

14. Ex.P4, postmortem certificate would indicate abrasions and contusions over the body of the deceased. Initially, P.W.15 did not give any opinion on the cause of death in Ex.P4. After receipt of the RFSL report, he opined that the cause of death was due to asphyxia secondary to ante mortem chest injury.

15. Further, as rightly contended by the learned counsel for the appellant, P.W.14 is a car driver by profession, whose services were being utilised by the Police, and hence, his evidence cannot be relied upon. He deposed that he witnessed the auto M.O.5 in the police station on the next date of the incident; however, according to the prosecution, the auto M.O.5 was seized at the time of the arrest of the accused on 27.11.2014. Thus, the evidence of P.W.14 cannot be relied upon, and in fact, the evidence does not inspire confidence in the Court.

16. The trial Court, by relying upon the confession statement, Ex.P11, convicted the appellant for the offence punishable under Section 302 I.P.C. However, Ex.P11 the confession statement is hit by Section 25 of the Indian Evidence Act, and hence, no reliance can be placed upon it.

17. Thus, a careful scrutiny of evidence discloses that the accused has no intention to kill the deceased. The fight between the accused and the deceased was preceded by an altercation and abuse by the deceased. P.W.15 opined that the death was caused due to chest injury. Even as per the evidence of P.Ws.10 to 12, no weapon was used. Hence, the conviction and sentence recorded by the trial Court under Section 302 I.P.C. needs to be interfered with. Instead, the accused is liable to be convicted under Section 304-II I.P.C. Hence, we are of the opinion that the conviction and sentence recorded by the learned Additional Sessions Judge under Section 302 I.P.C. needs to be modified.

18. In the result, the criminal appeal is allowed in part. The conviction and sentence recorded against the appellant by the IV Additional District and Sessions Judge, Tanuku, in S.C.No.161 of 2016, for ‘life’ for the offence under Section 302 I.P.C. is hereby set aside. Instead, the appellant is convicted under Section 304-II I.P.C.

19. The petitioner was apprehended on 26.11.2014 and released on bail on 20.02.2015. Thereafter, the petitioner was in jail from 28.08.2017 till 01.03.2023, i.e. till he was enlarged on bail by order dated 01.03.2023 in I.A.No.1 of 2022 in terms of the orders passed by the composite High Court in Batchu Rangarao and others v. State of A.P. (2016 (3) ALT (Crl.) 505 (DB) (A.P.)). Thus, the petitioner served nearly six years of the sentence. We are of the opinion that the sentence already undergone by the appellant will serve the purpose to meet the ends of justice. The appellant is directed to appear before the concerned authorities and complete the formalities in terms of Batchu Rangarao’s case.

Consequently, miscellaneous petitions, if any, pending shall stand closed.