1 KSR, J & AHHS, J Crl.A.No.2417 of 2018 APHC010623252018 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3566] FRIDAY, THE EIGHTH DAY OF MAY TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE K SURESH REDDY THE HONOURABLE SRI JUSTICE A. HARI HARANADHA SARMA CRIMINAL APPEAL NO: 2417/2018 Between: 1. KOSETTY CHODINAIDU, R/O CHIDIPALLI VILLAGE, ATCHUTAPURAM MANDAL, VISAKHAPATNAM DISTRICT. ...APELLANT AND 1. THE STATE OF ANDHRA PRADESH, Rep. by its Public Prosecutor, High Court of Judicature at Hyderabad For the State of Telangana and the State of Andhra Pradesh. ...RESPODENT Appeal under Section 372/374(2)/378(4) of Cr.P.C praying that the High Court may be pleased to to present this Memorandum of Grounds of Criminal Appeal against the judgment dt.30.11.2017 passed in Sessions Case No.108 of 2016 on the file of the District and Sessions Judge, Visakhapatnam. 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 may be pleased to condone the delay of 185 days in filing the Criminal Appeal before this Honble Court and pass 2 KSR, J & AHHS, J Crl.A.No.2417 of 2018 IA NO: 1 OF 2023 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 suspend the execution of the sentence, judgement passed on 30th, November, 2017, in SC no. 108 of 2016 on the file of Principal District & Sessions Judge, Visakhapatnam and release the petitioner on bail, pending disposal of the above criminal appeal no. 2417 of 2018, and pass Counsel for the Apellant: 1. G VIJAYA SARADHI 2. 000 Counsel for the Respodent: 1. PUBLIC PROSECUTOR (AP) The Court made the following: 3 KSR, J & AHHS, J Crl.A.No.2417 of 2018 IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI FRIDAY, THIS THE EIGHTH DAY OF MAY TWO THOUSAND AND TWENTY SIX SPECIAL DIVISION BENCH PRESENT HONOURABLE SRI JUSTICE K.SURESH REDDY And HONOURABLE SRI JUSTICE A. HARI HARANADHA SARMA CRIMINAL APPEAL No.2417 of 2018 JUDGMENT: (Per Hon’ble Sri Justice A. Hari Haranadha Sarma) Introductory: The appellant herein is the sole accused in Session Case No.108 of 2016 on the file of the Principal District and Sessions Judge, Visakhapatnam. He was tried and convicted for the charge under Section 302 IPC and sentenced to suffer imprisonment for life and to pay fine of Rs.2,000/- and in default of payment of fine, directed to suffer simple imprisonment for a period of one month under the judgment dated 30.11.2017. The said conviction and sentence are questioned in this appeal. Case of the prosecution: 2(i). One Kaki Rambabu (hereinafter referred to as “the deceased”) is the son of P.W.1-Kaki Nookaraju and friend of the accused. On 05.08.2013, accused and deceased attended the birthday function of the son of P.W.4. The mobile phone of the accused was missing, for which the accused suspected the deceased and there was an altercation between the deceased 4 KSR, J & AHHS, J Crl.A.No.2417 of 2018 and the accused. They abused each other touching the characters of ladies of their respective family members. P.W.4, P.W.5 and another L.W.8-Pithani Srinu @ Srinivasa Rao interfered and pacified the matter and sent them to their respective houses at 11:30 p.m. from the house of P.W.4. (ii). At about 12:00 midnight, the accused and the deceased on the way to their houses again quarreled with each other. Houses of both of them are in near vicinity. The accused brought a knife from his house and hacked the deceased on the head, causing a cut injury. Then, the deceased raised loud cries. On hearing the cries, the parents of the deceased, P.W.1-Kaki Nookaraju and L.W.2-Kaki Nookalamma and neighbours P.W.3, P.W.6 and L.W.10-Kadagala Parvathi rushed to the scene of offence and noticed the accused holding the knife with blood stains. P.W.3 removed the knife from the hands of the accused. Then the accused escaped from the spot. The deceased was shifted to NTR Hospital, Anakapalli, in the Auto of P.W.2-Kaki Ramana for treatment. (iii). P.W.12 gave first aid to the deceased and referred him to KGH, Visakhapatnam, for better treatment. But, the deceased was shifted to Kala Hospital, Visakhapatnam. On receipt of information from Kala Hospital, Visakhapatnam, P.W.14 visited the hospital and noticed the deceased in a critical condition. Then he recorded the statement of P.W.1 vide Ex.P1 and registered a case in Crime No.109 of 2013 for the offences under Sections 324 and 506 IPC on 06.08.2013 at about 21:00 hours vide FIR-Ex.P9. 5 KSR, J & AHHS, J Crl.A.No.2417 of 2018 (iv). During the course of investigation, P.W.14 examined witnesses P.W.1, Kaki Nookalamma and P.W.2 and recorded their detailed statements and visited the scene of offence. He has examined the scene of offence in the presence of P.W.7 and L.W.12-Kaki Appalaraju and seized the crime weapon i.e. the knife with blood stains, under cover of an occurrence report dated 07.08.2013-Ex.P3, arrested the accused and sent him to judicial custody. (v). P.W.15 took up further investigation. In the meanwhile, the deceased succumbed to injuries on 16.08.2013. Thereupon, P.W.1 submitted report- Ex.P2, on which the case was altered from Sections 324 and 506 IPC to Section 302 IPC. (vi). P.W.16 conducted the further investigation, visited KGH Hospital, where the dead body of the deceased was there he got the dead body, photographed through photographer-P.W.10 and held an inquest over the dead body in the presence of P.W.1, Kaki Nookalamma, P.W.2 and L.W.5- Kaki Ramana, the family members and panchayatdars P.W.8, P.W.9 and L.W.16-Geddada Ramana, L.W.17-Karri Sundararao and L.W.18-Karri Venkata Ramana and sent the corpse for autopsy. L.W.22-Dr. Y. Pydiraju conducted the autopsy and issued post-mortem certificate, opining that the deceased appeared to have died of respiratory and circulatory failure due to injury to the brain due to head injury. (vii). During the further course of investigation, P.W.17 examined P.W.11 and P.W.12 and recorded their statements and collected information about P.W.11 giving first aid and collected the case sheet from P.W.12. After 6 KSR, J & AHHS, J Crl.A.No.2417 of 2018 completing the investigation, charge sheet was laid against the accused for the offence under Section 302 IPC, stating that the investigation disclosed accused intentionally attacked the deceased with the knife, caused grievous injuries to the head of the deceased, resulting in death of the deceased. (viii). Charge was framed against the accused for the offence under Section 302 IPC. On denial of the charge, the learned Sessions Judge proceeded with the trial and after the trial, examined the accused in terms of Section 313 Cr.P.C., indicating the incriminating material, which the accused claimed as false. Case of the accused: 3. The accused denied the evidence of the prosecution as false and his specific case is that there was no previous enmity. The case is foisted with false allegations, citing all the relatives of the deceased and that he is innocent. Findings of the learned Sessions Judge: 4(i). The learned Sessions Judge found that, in view of the evidence of P.W.2 and P.W.12 as well as medical evidence, the death of the deceased can be found as homicidal and there is motive for the accused to commit the murder, in view of the altercation between the deceased and the accused followed by allegations of unchastity against the sister-in-law of the accused by the deceased. 7 KSR, J & AHHS, J Crl.A.No.2417 of 2018 (ii). The FIR was promptly lodged. Material objects were recovered at the instance of accused. There is no doubt as to identifying the accused by the witnesses. The inconsistencies and falsehoods pointed out by the defence are minor and inconsequential. The information shared by the deceased to P.W.1 amounts to a dying declaration and the same can be believed. The intention for the accused to cause death is also clear. Therefore, the charge is proved by the prosecution and the accused is liable for conviction and sentence for the offence under Section 302 IPC. Accordingly, the accused / appellant was sentenced as stated above. Arguments in the appeal: For the appellant/accused: 5(i). Sri G. Vijaya Saradhi, learned counsel for the appellant/accused, would submit that, there are contradictions and discrepancies in the evidence of the prosecution witnesses. (ii). P.W.1 cannot be considered as an eye witness, nor can the statement of the deceased made to P.W.1 be considered as a dying declaration. (iii). The earliest statement-Ex.P1 shows that P.W.1 is the father of the deceased. P.W.1 heard cries and came out of the house and found that the blood was oozing from the head of his son. On enquiry by himself and his wife, they were informed that accused attacked their son. Immediately the injured / deceased was shifted to the hospital. When Ex.P1 contents are read, it can be understood that P.W.1 came to know about the attack through the deceased. But, the evidence of P.W.1 before the Court is as if he has 8 KSR, J & AHHS, J Crl.A.No.2417 of 2018 witnessed the incident of attack and that the accused had threatened to kill all the people available if they raised their voice. Therefore, there is falsity. (iv). The presence of P.W.1 and seeing the accused at the scene of offence and the accused threatening P.W.1 and others is not there in Ex.P1 report given to the Police, which indicates the falsity in the version of the P.W.1 and other prosecution witness. Further, the presence of other witnesses P.W.2, P.W.3 and P.W.4, P.W.2.-Kaki Ramana and P.W.3-Kadagala Santosh Kumar is not stated by P.W.1. Therefore, the evidence of P.W.1 is not worthy of credit and the evidence of P.W.2 and P.W.3 is also fit to be discarded, as their names are not mentioned in the report Ex.P1. (v). The evidence is not reflecting any motive or intentional attack by accused. (vi). The learned Sessions Judge failed to consider the lapses in the prosecution case. (vii). There is substantial delay in lodging the FIR. The incident occurred on intervening night of 05/06.08.2013 and the report was given on 06.08.2013 at about 09:00 P.M. The delay in giving complaint to the police is not ordinary but the learned Sessions Judge ignored the same. The recovery of weapon etc. are planted. Further, proper scientific investigation as to blood stains etc. on the knife is not done. The material witnesses are interested in the deceased. There is change in the versions between Exs.P1 and P2. Therefore, it is not safe to rely on evidence of prosecution witnesses. 9 KSR, J & AHHS, J Crl.A.No.2417 of 2018 For the respondent-State: 6(i). Sri Marri Venkata Ramana, learned Additional Public Prosecutor submits that the inconsistencies projected by the accused are not material and the contradictions, if any, are only minor, hence, they shall be ignored. (ii). The evidence of P.W.1 is natural and the delay in giving the report- Ex.P1 does not falsify the case and there is no much delay when the same is seen in the light of medical emergency of extending treatment to victim. What is more important is treatment to victim than giving a report to the Police. (iii). The genesis of the crime is the altercation between the deceased and the accused at the birthday function of the son of P.W.4. There is absolute aggressive attitude on the part of the accused with both intention and knowledge as to the consequences of his conduct. (iv). The FIR cannot be considered as comprehensive document to contain all evidence. Disclosure of material and important information in the FIR is sufficient. (v). The argument on behalf of the accused cannot be accepted and there are no grounds to interfere and the appeal is fit to be dismissed, confirming the conviction and sentence. 7. We have carefully perused the record and anxious and thoughtful consideration is given to the arguments advanced by both sides. 10 KSR, J & AHHS, J Crl.A.No.2417 of 2018 8. The points that arise for determination in this appeal are: 1) Whether the prosecution is able to bring home the guilt of the appellant/accused for the offence of committing the murder of Kaki Rambabu on the intervening night of 05 / 06.08.2013, punishable under Section 302 IPC and whether the conviction and sentence imposed by the learned Sessions Judge under the Judgment dated 30.11.2017 in Session Case No.108 of 2016 are sustainable in law and on facts or whether any interference is necessary? If so, on what grounds and to which extent? 2) What is the result of the appeal? Point No.1: Nature of death of Kaki Rambabu / deceased: 9. As per post mortem report (Ex.P8), the cause of death is due to respiratory and circulatory failure due to injury to the brain due to head injury. 10. P.W.13-Assistant professor, Forensic Medicine, Andhra Medical College, Visakhapatnam, who worked along with Dr.Y. Pydi Raju, who conducted post-mortem on the dead body of the deceased Kaki Rambabu, referred to the external and internal injuries and opined that all external injuries, except injury No.2 can be possible by using M.O.No.1-Knife and all internal injuries, except injury No.3 are the result of external injuries and that the injuries mentioned in Ex.P8-post mortem report are sufficient to cause death. Dr. Y. Pydi Raju, who conducted the post mortem, was no more by 11 KSR, J & AHHS, J Crl.A.No.2417 of 2018 the time of trial. Hence, P.W.13 was examined, who gave evidence with reference to the record and he identified the signature of Dr.Y. Pydi Raju. [ 11(i). P.W.12 / Dr.Bhairavabhatla V.S.P. Viswanadh, attended the deceased and stated that the patient was conscious when he was brought to the hospital. He observed the following injuries: 1. Lacerated profuse bleeding wound of size 12 x 2 cms over centre of head. 2. Lacerated profuse bleeding wound of size 6 x 1 cm over right forearm. 3. Lacerated bleeding wound of size 4 x 1.5 cms over centre of chest. (ii). He stated that he has issued Ex.P7-accident register information and the injuries mentioned in Ex.P7 are possible with M.O.No.1 and lead to the death of the patient. He has identified Ex.P7 and his signature therein. It is mentioned against the column meant for “nature of injury” in Ex.P7 that, there was an alleged assault by a known person with a knife on 05.08.2013 at around 11:30 p.m. at Jangala colony, Chodapalli Village. The patient was conscious and the smell of alcohol was present. (iii). Evidence of P.W.1, the father of the deceased and other witnesses gets corroboration from the medical evidence covered by Ex.P7 and Ex.P8 and the oral evidence of P.W.12, the doctor who attended the deceased on admission in hospital and Evidence of P.W.13 with reference to post-mortem 12 KSR, J & AHHS, J Crl.A.No.2417 of 2018 certificate. From this evidence, it is clear that the death of the deceased is homicidal. 12. The prosecution case is that the accused / appellant has murdered the deceased for the reason of attributing unchastity to the female members in the family of the accused. Motive and role of the accused in the homicidal death of the deceased: 13. It is the case of the prosecution that the accused and the deceased were friends. They attended birthday function of the son of P.W.4 and also consumed alcohol. The mobile phone of the accused was found missing and he has suspected the deceased. In that process, the accused and the deceased made allegations against each other, imputing unchastity to the wife of the deceased and the sister in law of the accused. In that process, the accused threatened the deceased to do away with his life on that day for blaming the family members of the accused. 14. The evidence of P.W.1 is that, on hearing cries and galata near his house, he and his wife rushed to the scene of offence and observed deceased lying down with head injuries. On enquiry, the deceased revealed about attending the birthday function in the house of P.W.4 and what has happened between the accused and the deceased and that P.W.4 and others separated the accused and the deceased. To the extent of what has happened at birthday function, P.W.1 is not an eye witness. 13 KSR, J & AHHS, J Crl.A.No.2417 of 2018 15. P.W.2, was sleeping, on the request of P.W.1 to shift the injured to the hospital in the auto of P.W.2, went to the scene of offence and noticed the deceased with injuries etc. He has also stated that the deceased disclosed what had happened between the deceased and the accused. 16(i). As per P.W.3, he was sleeping in the house, he heard cries and came out. He observed the knife in the hands of the accused, quarrel was going on, the parents of the deceased were trying to take away the knife from the hands of the accused. He intervened and took away the knife from the hands of the accused. This important role of P.W.3 as to interfering and the parents of the deceased trying to take away the knife from the hands of the accused is not stated by P.W.1. This is an improvement. (ii). During cross-examination, he has stated that deceased is used to take alcohol. 17(i). As per P.W.4-One Kaki Sreenivasa Rao, in his house birthday function taken place. Deceased and accused attended the birthday function from 07:00 p.m. onwards. The accused abused the deceased, suspecting that the deceased stolen his cell phone. In that process, the accused commented on the wife of the deceased, saying that she got pregnancy though others and the deceased abused the accused by commenting that the sister in law of the accused was also roaming with others. The deceased thrown the water bottle on the accused. Accused thrown the plate from his side on the deceased. On observing the same, he and P.W.5-Ganji 14 KSR, J & AHHS, J Crl.A.No.2417 of 2018 Ramakrishna and L.W.8-Pithani Srinu, intervened and separated them. On the next day morning, he came to know through one Kaki Appalaraju, (L.W.12) that again galata taken place between the accused and the deceased during the night hours, in that process, the deceased sustained injuries on the head and shoulders and was shifted to the hospital. After five or six days, the deceased succumbed to the injuries. (ii). During his cross examination, it is elicited that the house of the deceased is near to his house after 50 feet and that the house of the accused is also nearby. On the occasion of birthday of his son, he hosted alcohol drinks to the guests. However, he again stated that he did not offer any drinks to anybody. 18. P.W.5, who is said to have separated the deceased and the accused during the quarrel at the birthday function, stated that he attended the birthday function in the house of P.W.4 at about 10:30 p.m. He put his cell phone for charging, went to petrol bunk and came back at 11:15 p.m. to take his cell phone, when he observed an altercation between the deceased and the accused on the point of missing of cell phone of the accused. In that process, the accused commented on the wife of the deceased that she become pregnant before marriage and the same was removed. The deceased hurled a water bottle over the accused. The deceased has also commented on the sister-in-law of the accused, touching her character. Then, the accused hurled a plate at the deceased. Then, he (P.W.5) admonished both of them for abusing the womenfolk and sent them away. 15 KSR, J & AHHS, J Crl.A.No.2417 of 2018 On the next day, he came to know about the attack by the accused on deceased. 19(i). P.W.6 deposed that on 05.08.2013 when he was sleeping at midnight, he heard galata and came out and observed the presence of the deceased lying on the ground with a hacked injury on the head with blood oozing and his parents crying. He observed a knife in the hands of the accused. The parents of the deceased were trying to take away the knife from the hands of the accused. In that scuffle, P.W.3 rushed to the scene and took away the knife from the hands of the accused. Then, the deceased was shifted to the hospital. (ii). During cross examination, P.W.6 stated that the deceased is his brother-in-law by courtesy and that P.W.1 and his father-in-law are brothers. 20. P.W.7 is a witness for recovery and seizure of knife-M.O.No.1 at the scene of offence and observation of the scene of offence. 21. P.W.11- the doctor, deposed about bringing the deceased / injured by name K. Rambabu by his relatives with a head injury, P.W.12 treating the deceased and also transmission of death intimation to the Police. Further, the death certificate Ex.P6 was issued by their hospital. The cause of death is mentioned in Ex.P6 as due to cardio-respiratory arrest due to head injury (frontal intracerebral haematoma). 16 KSR, J & AHHS, J Crl.A.No.2417 of 2018 22. Ex.P1 is silent about either P.W.1 or the other witnesses, particularly P.W.3 removing the knife from the hands of the accused. From Ex.P1, it can be understood that the deceased has informed to P.W.1 that the accused had hacked the deceased on the head and also about the birthday function at the house of P.W.4 and the altercation between the accused and the deceased. 23. Ex.P1 is dated 06.08.2013. Ex.P2 is dated 16.08.2013 which was given after the death of the deceased. As per Ex.P2 also, there was a quarrel between the accused and the deceased at the birthday function and the accused caused injury to the head of the deceased with a knife. 24. As per the inquest, both the accused and the deceased quarreled at birthday function and attributed unchastity to the female members. The people present there has segregated and sent them back to their respective houses. When they were returning home by walk, they again have quarreled in front of the house of P.W.3. During the said quarrel, the accused went inside his house, brought a knife and hacked the deceased on the head and also caused injury on the right hand wrist. On hearing the cries, the parents of the deceased and others came to the scene. 25. The rough sketch of the scene of offence-Ex.P10 is indicating the houses of the accused and the deceased in the same vicinity. What has transpired between the accused and the deceased at the birthday function is spoken by P.W.4. P.W.5 also said to have attended the birthday function 17 KSR, J & AHHS, J Crl.A.No.2417 of 2018 and his evidence corroborates the evidence of P.W.4. Evidence of P.Ws.2, 3 and 6 is relating to what has happened at the time of the actual attack. The presence of P.Ws.2, 3 and 6 in exact terms is not specifically stated by P.W.1. However, shifting of the deceased in the auto of P.W.2 is stated by P.W.1. The presence of the accused soon after the incident is stated by P.Ws.2, 3 and 6, but their presence is not stated by P.W.1. 26. P.Ws.1, 2, 3 and 6 stated that they saw the accused hacking the deceased. In such a situation, there may not be any necessity for them to ask what has happened. However, at that crucial time, they tried to shift the deceased to the hospital. Even otherwise, the deceased informing about earlier incident and the accused attacking the deceased are beyond any reasonable doubt. Therefore, the information passed on by the deceased to P.W.1 and others about the accused attacking him can be believed as an oral dying declaration. But, what made the accused to attack the deceased require examination to consider the motive and intention of the accused at that moment. As per P.W.5, he came to the house of P.W.4 at about 11:15 p.m., there was altercation between the deceased and the accused. P.W.4 also says the same. According to the prosecution version, the quarrel between the accused and the deceased taken place around 11:30 p.m. and they were sent back by the elders. On the way back to home, they again quarreled in front of the house of P.W.3. The evidence of P.W.3 is that, on hearing cries, he came out and found the deceased lying on the road with 18 KSR, J & AHHS, J Crl.A.No.2417 of 2018 injuries. What exactly transpired between the accused and the deceased at that moment is known only to the accused and the deceased. Death of deceased is homicidal. Culpable homicide whether amounting to murder: 27. The statement of the deceased made to P.W.1 about the reason for attack by the accused gets corroboration from the evidence of P.W.4. It is relevant to note that the doctor stated that there was a smell of alcohol on the deceased and P.W.4 admitted that alcohol was arranged during the birthday function. Therefore, the voluntary intoxicated condition of both the accused and the deceased, the quarrel between them and the imputations of unchastity to female family members can be considered as circumstance that led to rage and a fight between both and the death of the deceased. 28. The death is homicidal. Whether it amounts to murder requires examination. When the culpable homicide does not amount to murder can be understood on referring to the exceptions under Section 300 IPC which reads as follows: 300. Murder.—Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or— 2ndly.—If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or— 3rdly.—If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or— 19 KSR, J & AHHS, J Crl.A.No.2417 of 2018 4thly.—If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Illustrations (a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder. (b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury. Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death, or such bodily injury as in the ordinary course of nature would cause death. (c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here A is guilty of murder, although he may not have intended to cause Z's death. (d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual. Exception 1.—When culpable homicide is not murder.—Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. 20 KSR, J & AHHS, J Crl.A.No.2417 of 2018 The above exception is subject to the following provisos:— First.—That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly.—That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly.—That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.—Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Illustrations (a) A, under the influence of passion excited by a provocation given by Z, intentionally kills Y, Z's child. This is murder, inasmuch as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doing an act caused by the provocation. (b) Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed murder, but merely culpable homicide. (c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and kills Z. This is murder, inasmuch as the provocation was given by a thing done by a public servant in the exercise of his powers. (d) A appears as a witness before Z, a Magistrate. Z says that he does not believe a word of A's deposition, and that A has perjured himself. A is moved to sudden passion by these words, and kills Z. This is murder. (e) A attempts to pull Z's nose. Z, in the exercise of the right of private defence, lays hold of A to prevent him from doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is 21 KSR, J & AHHS, J Crl.A.No.2417 of 2018 murder, inasmuch as the provocation was giving by a thing done in the exercise of the right of private defence. (f) Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take advantage of B's rage, and to cause him to kill Z, puts a knife into B's hand for that purpose. B kills Z with the knife. Here B may have committed only culpable homicide, but A is guilty of murder. Exception 2.—Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Illustration Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped, shoots Z dead. A has not committed murder, but only culpable homicide. Exception 3.—Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. Exception 4.—Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. Explanation.—It is immaterial in such cases which party offers the provocation or commits the first assault. 22 KSR, J & AHHS, J Crl.A.No.2417 of 2018 Exception 5.—Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. Illustration A, by instigation, voluntarily causes Z, a person under eighteen years of age to commit suicide. Here, on account of Z's youth, he was incapable of giving consent to his own death; A has therefore abetted murder. 29. As per Exception-1 to Section 300 IPC, if there is grave and sudden provocation and under such provoked situation the accused causes death, even if it is intentional or with knowledge, the same will amount to culpable homicide not amounting to murder. As per Exception 4 to Section 300 IPC, if due to a sudden fight between the parties the accused causes death or injury sufficient to cause death, even with intention or knowledge and if conditions mentioned are satisfied, the same will amount to only culpable homicide not amounting to murder. The parameters for application of Section 300 Exception 4 are as follows: (i). The incident occurred without premeditation in a sudden fight. (ii). It occurred in the heat of passion upon a sudden quarrel. (iii).The offender did not take undue advantage. (iv).The offender did not act in a cruel or unusual manner (v).The fight must have been with the persons who was killed. 23 KSR, J & AHHS, J Crl.A.No.2417 of 2018 30. In the context of the case before this Court, it is proper to note the observations of the Hon’ble Apex Court in a case between Sandhya Jadhav(Smt) vs. State of Maharashtra1 vide para Nos.8 and 9, which read as follows: 8. For bringing in operation of Exception 4 to Section 300 IPC, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. 9. The Fourth Exception to Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution not covered by the First Exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A “sudden fight” implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that 1 (2006) 4 SCC 653 24 KSR, J & AHHS, J Crl.A.No.2417 of 2018 one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression “undue advantage” as used in the provision means “unfair advantage”. 31. Learned counsel for the appellant / accused relied on Uttam vs. State of Maharashtra2 for the proposition that where an oral dying declaration made by the deceased and what is stated in dying declaration is not stated by material witnesses, the same cannot be believed. In the cases cited, the deceased is said to have mentioned about the accused suspecting her character in her oral dying declaration and the same is not stated in the 2 (2022) 8 SCC 576 25 KSR, J & AHHS, J Crl.A.No.2417 of 2018 prosecution version. Non-mentioning of such an important aspect was found casting a shadow. It was a case of multiple dying declarations. The observations in para Nos.11 to 16 of the judgment, as to how dying declarations have to be appreciated, found fit to be noted. They are as follows: 11. Dying declaration is the last statement that is made by a person as to the cause of his imminent death or the circumstances that had resulted in that situation, at a stage when the declarant is conscious of the fact that there are virtually nil chances of his survival. On an assumption that at such a critical stage, a person would be expected to speak the truth, courts have attached great value to the veracity of such a statement. Section 32 of the Evidence Act, 1872 (for short “the Evidence Act”) states that when a statement is made by a person as to the cause of death, or as to any of the circumstances which resulted in his death, in cases in which the cause of that person's death comes into question, such a statement, oral or in writing made by the deceased victim to the witness, is a relevant fact and is admissible in evidence. It is noteworthy that the said provision is an exception to the general rule contained in Section 60 of the Evidence Act that “hearsay evidence is inadmissible” and only when such an evidence is direct and is validated through cross- examination, is it considered to be trustworthy. 12. In Kundula Bala Subrahmanyam v. State of A.P. [Kundula Bala Subrahmanyam v. State of A.P., (1993) 2 SCC 684 : 1993 SCC (Cri) 655] , this Court had highlighted the significance of a dying declaration in the following words : (SCC p. 697, para 18) “18. Section 32(1) of the Evidence Act is an exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross-examination, it is not creditworthy. Under Section 32, when a statement is made by a person, as to the cause of death or as to any of the circumstances which result in his death, in cases in which the cause of that person's death comes into 26 KSR, J & AHHS, J Crl.A.No.2417 of 2018 question, such a statement, oral or in writing, made by the deceased to the witness is a relevant fact and is admissible in evidence. The statement made by the deceased, called the dying declaration, falls in that category provided it has been made by the deceased while in a fit mental condition. A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the courts, it becomes a very important and a reliable piece of evidence and if the court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration.” 13. In Shudhakar v. State of M.P. [Shudhakar v. State of M.P., (2012) 7 SCC 569 : (2012) 3 SCC (Cri) 430] , this Court had opined that once a dying declaration is found to be reliable, it can form the basis of conviction and made the following observations : (SCC p. 580, para 20) “20. The “dying declaration” is the last statement made by a person at a stage when he is in serious apprehension of his death and expects no chances of his survival. At such time, it is expected that a person will speak the truth and only the truth. Normally in such situations the courts attach the intrinsic value of truthfulness to such statement. Once such statement has been made voluntarily, it is reliable and is not an attempt by the deceased to cover up the truth or falsely implicate a person, then the courts can safely rely on such dying declaration and it can form the basis of conviction. More so, where the version given by the deceased as dying declaration is supported and corroborated by other prosecution evidence, there is no reason for the courts to doubt the truthfulness of such dying declaration.” 27 KSR, J & AHHS, J Crl.A.No.2417 of 2018 14. In Paniben v. State of Gujarat [Paniben v. State of Gujarat, (1992) 2 SCC 474 : 1992 SCC (Cri) 403] , on examining the entire conspectus of the law on the principles governing dying declaration, this Court had concluded thus : (SCC pp. 480-81, para 18) “18. … (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Munnu Raja v. State of M.P. [Munnu Raja v. State of M.P., (1976) 3 SCC 104 : 1976 SCC (Cri) 376] ) (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of U.P. v. Ram Sagar Yadav [State of U.P. v. Ram Sagar Yadav, (1985) 1 SCC 552 : 1985 SCC (Cri) 127] ; Ramawati Devi v. State of Bihar [Ramawati Devi v. State of Bihar, (1983) 1 SCC 211 : 1983 SCC (Cri) 169] .) (iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramachandra Reddy v. Public Prosecutor [K. Ramachandra Reddy v. Public Prosecutor, (1976) 3 SCC 618 : 1976 SCC (Cri) 473].) (iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of M.P. [Rasheed Beg v. State of M.P., (1974) 4 SCC 264 : 1974 SCC (Cri) 426] ) (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P. [Kake Singh v. State of M.P., 1981 Supp SCC 25 : 1981 SCC (Cri) 645] ) (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P. [Ram Manorath v. State of U.P., (1981) 2 SCC 654 : 1981 SCC (Cri) 581] ) (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurti Laxmipati Naidu [State of 28 KSR, J & AHHS, J Crl.A.No.2417 of 2018 Maharashtra v. Krishnamurti Laxmipati Naidu, 1980 Supp SCC 455 : 1981 SCC (Cri) 364] .) (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Ojha v. State of Bihar [Surajdeo Ojha v. State of Bihar, 1980 Supp SCC 769 : 1979 SCC (Cri) 519] .) (ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanhau Ram v. State of M.P. [Nanhau Ram v. State of M.P., 1988 Supp SCC 152 : 1988 SCC (Cri) 342] ) (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan [State of U.P. v. Madan Mohan, (1989) 3 SCC 390 : 1989 SCC (Cri) 585].)” 15. In cases involving multiple dying declarations made by the deceased, the question that arises for consideration is as to which of the said dying declarations ought to be believed by the court and what would be the guiding factors for arriving at a just and lawful conclusion. The problem becomes all the more knotty when the dying declarations made by the deceased are found to be contradictory. Faced with such a situation, the court would be expected to carefully scrutinise the evidence to find out as to which of the dying declarations can be corroborated by other material evidence produced by the prosecution. Of equal significance is the condition of the deceased at the relevant point in time, the medical evidence brought on record that would indicate the physical and mental fitness of the deceased, the scope of the close relatives/family members having influenced/tutored the deceased and all the other attendant circumstances that would help the court in exercise of its discretion. 29 KSR, J & AHHS, J Crl.A.No.2417 of 2018 16. In Lakhan v. State of M.P. [Lakhan v. State of M.P., (2010) 8 SCC 514 : (2010) 3 SCC (Cri) 942] , where the deceased was burnt by pouring kerosene oil on her and was brought to the hospital by the accused and his family members, the Court noticed that she had made two varying dying declarations and held thus : (SCC pp. 518-19, paras 9-10) “9. The doctrine of dying declaration is enshrined in the legal maxim nemo moriturus praesumitur mentire, which means “a man will not meet his Maker with a lie in his mouth”. The doctrine of dying declaration is enshrined in Section 32 of the Evidence Act, 1872 (hereinafter called as “the Evidence Act”) as an exception to the general rule contained in Section 60 of the Evidence Act, which provides that oral evidence in all cases must be direct i.e. it must be the evidence of a witness, who says he saw it. The dying declaration is, in fact, the statement of a person, who cannot be called as witness and, therefore, cannot be cross-examined. Such statements themselves are relevant facts in certain cases. 10. This Court has considered time and again the relevance/probative value of dying declarations recorded under different situations and also in cases where more than one dying declaration has been recorded. The law is that if the court is satisfied that the dying declaration is true and made voluntarily by the deceased, conviction can be based solely on it, without any further corroboration. It is neither a rule of law nor of prudence that a dying declaration cannot be relied upon without corroboration. When a dying declaration is suspicious, it should not be relied upon without having corroborative evidence. The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased must be in a fit state of mind to make the declaration and must identify the assailants. Merely because a dying declaration does not contain the details of the occurrence, it cannot be rejected and in case there is merely a brief statement, it is more reliable for the reason that the shortness of the statement is itself a guarantee of its veracity. If the dying declaration suffers from some infirmity, it cannot alone form the basis of conviction. Where the prosecution version differs from the version given in the dying declaration, the said 30 KSR, J & AHHS, J Crl.A.No.2417 of 2018 declaration cannot be acted upon. (Vide Khushal Rao v. State of Bombay [Khushal Rao v. State of Bombay, AIR 1958 SC 22] , Rasheed Beg v. State of M.P. [Rasheed Beg v. State of M.P., (1974) 4 SCC 264 : 1974 SCC (Cri) 426] , K. Ramachandra Reddy v. Public Prosecutor [K. Ramachandra Reddy v. Public Prosecutor, (1976) 3 SCC 618 : 1976 SCC (Cri) 473] , State of Maharashtra v. Krishnamurti Laxmipati Naidu [State of Maharashtra v. Krishnamurti Laxmipati Naidu, 1980 Supp SCC 455 : 1981 SCC (Cri) 364] , Uka Ram v. State of Rajasthan [Uka Ram v. State of Rajasthan, (2001) 5 SCC 254 : 2001 SCC (Cri) 847] , Babulal v. State of M.P. [Babulal v. State of M.P., (2003) 12 SCC 490 : 2005 SCC (Cri) 620] , Muthu Kutty v. State [Muthu Kutty v. State, (2005) 9 SCC 113 : 2005 SCC (Cri) 1202] , State of Rajasthan v. Wakteng [State of Rajasthan v. Wakteng, (2007) 14 SCC 550 : (2009) 3 SCC (Cri) 217] and Sharda v. State of Rajasthan [Sharda v. State of Rajasthan, (2010) 2 SCC 85 : (2010) 2 SCC (Cri) 980] .)” 32. In the present case, the declaration made by the deceased to P.Ws.1, 2, 3 and 6 to the extent of the accused attacking the deceased is acceptable. With regard to what has happened at the birthday party, the oral dying declaration of the deceased gets corroborated by the evidence of P.Ws.4 and 5. 33. What has happened between the deceased and the accused at the actual time of the attack is not witnessed by anyone. The evidence of P.Ws.1, 2, 3 and 6, as to they witnessing the accused attacking the deceased, is an improvement. As rightly observed by the learned Sessions Judge, false in one aspect cannot render the entire evidence false. The doctrine of falsus in uno, falsus in omnibus is not a matter of ready 31 KSR, J & AHHS, J Crl.A.No.2417 of 2018 interference and application. Separating truth from falsehood is the duty of the Court. 34. The theory of the deceased was last seen with the accused, is acceptable. The attack by the accused on the deceased, as spoken to by the prosecution witnesses, is also acceptable. Further, the accused was seen with the deceased immediately after the incident. The crucial question is whether it has a premeditated murder or it was out of a sudden fight between the deceased and accused. The altercation started at around 11:30 p.m. and they were in a drunken condition. Hurling of a water bottle and a meals plate against each other has taken place and heated exchange involving the female members of their families taken place. They were then sent out from the place of where the function is taken place. On the way to their respective homes, again quarrel taken place. As per the version of the prosecution that the accused brought a knife from his house, which suggests that it was not carried along with him earlier, nor was it a premeditated attack. Therefore, it can be considered that the attack occurred during the course of a fight and altercation. There are three injuries. The injury on the head is fatal and is the cause of death, as per P.W.13. Upon taking note of the factual scenario and the evidence on record, this Court is of the considered view that the death of deceased is culpable homicide caused by the accused, but the same falls under the exceptions, partly covered by Exception 1 and partly by Exception 4 to Section 300 IPC. The exceptions under Exception 1 and Exception 4 to Section 300 IPC are, to some extent, overlapping. The 32 KSR, J & AHHS, J Crl.A.No.2417 of 2018 difference lies as to the role of the deceased. In cases of sudden fight (covered under Exception 4 to Section 300 IPC; punishable under Section 304 IPC), the role of the deceased may be equal to that of the accused, whereas under Exception 1 to Section 300 IPC, the conduct of the deceased in provoking the accused is relevant. Here is a case where both knowledge and intention can be attributed to the accused as to the consequences of his conduct, but it was out of sudden fight. 35. The strong circumstance that enables the accused to seek the benefit of the exception is that there was an altercation and fight between the accused and the deceased immediately before the incident. There was attribution of unchastity to his sister-in-law and it is clear that drink was also supplied. It is also clear that both were in a drunken condition, but the defence of intoxication, either voluntary or involuntary, falling under the general exceptions, is neither pleaded nor made out. Therefore, this Court is of the opinion that it is a fit case to convert the conviction form Section 302 IPC to Section 304 Part I IPC and to modify the sentence from life imprisonment to imprisonment for a period of ten years. The point framed is answered accordingly. Point No.2: 36(i). In the result, the present Criminal Appeal is allowed in part, the conviction and sentence recorded by the learned Principal District and Sessions Judge, Visakhapatnam, in Sessions Case No.108 of 2016, 33 KSR, J & AHHS, J Crl.A.No.2417 of 2018 dated 30.11.2017, are modified from Section 302 IPC to Section 304 Part I IPC and the sentence of life imprisonment is modified to imprisonment for a period of ten years. The fine of Rs.2,000/- imposed shall stand unaltered. The period already undergone by the accused shall be given set-off as per Section 428 Cr.P.C. (ii). The appellant / accused was given the benefit of bail in terms of the judgment of the composite High Court for the State of Telangana and the State of Andhra Pradesh in Batchu Rangarao and others vs. State of Andhra Pradesh3, by the orders of this Court dated 20.04.2023 in I.A.No.1 of 2023; hence, he is directed to surrender before the trial Court and serve the balance sentence, failing which the learned trial Court shall issue the necessary warrant and ensure the presence of the appellant / accused and commit him to prison for serving the balance sentence. 37. Miscellaneous petitions, if any, pending in the Criminal Appeal, shall stand closed. ________________________ JUSTICE K.SURESH REDDY __________________________________ JUSTICE A.HARI HARANADHA SARMA Date:08.05.2026 Knr 3 2016(3) ALT (Criminal) 505 (AP) 34 KSR, J & AHHS, J Crl.A.No.2417 of 2018 HONOURABLE SRI JUSTICE K SURESH REDDY And THE HONOURABLE SRI JUSTICE A. HARI HARANADHA SARMA CRIMINAL APPEAL No.2417 of 2018 Date:08.05.2026 Knr