Telangana High Court
Dudule Sanjeev, Nanded Dt, Maharashtra ... vs State Of Telangana, Rep Pp., on 22 February, 2024
Author: P.Sree Sudha
Bench: K.Lakshman, P.Sree Sudha
THE HONOURABLE SRI JUSTICE K.LAKSHMAN
AND
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
CRIMINAL APPEAL No.817 of 2015
JUDGMENT:
(per Hon'ble Smt. Justice P.Sree Sudha) This Criminal Appeal is filed against the Judgment dated 30.07.2015 in S.C.No.318 of 2014 passed by the learned Principal Sessions Judge, Adilabad.
2. The case of the prosecution is that appellant/accused, D.Sanjeev, alleged to have killed his wife, Nirmala (herein after referred as 'deceased') with a brick and thus it is alleged that accused committed offence punishable under Section 302 of IPC. To prove the guilt of the accused prosecution examined P.Ws.1 to 12 and marked Exs.P1 to P19 on their behalf and also marked M.Os.1 to 11. The Trial Court after considering the arguments of both sides and also the entire evidence on record, convicted the accused under Section 235(2) of Cr.P.C and sentenced him to undergo life imprisonment with a fine of Rs.1,000/-, in default to suffer simple imprisonment for a period of three months for the offence punishable under Section 302 of I.P.C and the period 2 of remand already undergone if any shall be set off under Section 428 Cr.P.C. Aggrieved by the said judgment and decree, accused preferred the present appeal.
3. Learned counsel for Accused mainly contended the evidence of P.W.2 is suspicious one. As per the prosecution the incident happened at about 6 or 7 p.m. and deceased died at hospital at 11.30 p.m. but the complaint was given to the police at 10.00 a.m., as such, there was a delay of more than 7 hours in lodging the complaint. P.W.1 did not record dying declaration of the deceased since no Magistrate turned up for recording the same though there was sufficient time between her admission in the hospital and her death. Therefore, requested this Court to set aside the judgment.
4. Heard arguments on both sides and perused the entire evidence on record.
5. As per the complaint given by P.W.1, Shaik Muneer, who was running brick business, he stated that on 01.06.2014, at about 7.30 P.M., one Narayana of Thandra Village informed him over the phone that at about 7.00 P.M., the accused who was working in his bricks manufacturing 3 unit beat his wife with bricks over her head suspecting her character and she received bleeding injuries. On such information, he rushed to that place and called an ambulance and shifted her to Government Hospital and while undergoing treatment, she succumbed to the injuries on the same day at 11.30 P.M. As such, he requested the police to take necessary action against the accused for killing his wife.
6. Basing on the complaint given by P.W.1, before the police under Ex.P1, and after the investigation, a case in Crime No.92 of 2014 was registered under Section 302 of IPC.
7. P.W.1 is the owner of the Brick Batti which is situated in the outskirts of Thandra Village. The accused and the deceased worked in his brick batti and they stayed in a hut near the batti. P.W.2 also resides in a hut nearby batti. He stated that the accused was suspecting the character of his wife and used to quarrel and beat her. On the date of the offence, at about 07.00 P.M., he received a phone call from P.W.4, Narayana informing that there was a quarrel between accused and his wife and accused beat his wife with a brick and caused head injury. He saw the deceased with a bleeding injury on her head and he called ambulance and 4 shifted her to Government Hospital, Nirmal. On the same night, she died in the hospital and on next morning, he gave complaint under Ex.P1 to the police and it was drafted by one Bhumesh. It was suggested to him that the relatives of the deceased lodged a complaint against him with the labour officer and he denied it. It was suggested to him that the relatives demanded for compensation, to avoid the same he filed the complaint against the accused and he denied it.
8. P.W.2 is resident of Gandversa of Mahor Taluqa of Maharashtra. He worked in P.W.1's brick batti at Thandra village. He stated that accused and his wife also worked in the same batti and all the labour including P.W.2 lived in the huts raised near batti. He stated that accused was suspecting the character of his wife and used to quarrel with her and beat her. On the date of offence in between 6 or 7 P.M., the accused quarreled with his wife and beat her. When he was in his hut, the deceased came to him and sought help and at that time, the accused came there and beat her with brick on her head and face and she sustained bleeding injury and fell down and he ran into the village as he was afraid of the accused. He informed the incident to L.W.4, 5 Narayana and the villagers and L.W.4 informed to P.W.1 over the phone and all of them came to the spot and found the deceased with the bleeding injuries and P.W.1 called an ambulance and thereafter she was shifted to Government Hospital, Nirmal. On the same night at 10 or 11.00 P.M., she died in the hospital. He stated that there are seven huts near the brick batti. It was suggested to him that after completing the work, he took liquor and slept and he does not know what happened thereafter and he denied the same. It was also suggested to him that the accused went into the village and by the time he returned he found his wife with bleeding injuries and he came to him and informed the same and then both of them went to the house of P.W.1 and informed the incident and he denied it. It was suggested to him that some unknown persons killed the deceased and himself, P.W.1 and others colluded and foisted the case against the accused and he denied it.
9. P.W.3 is a resident of Thandra Village of Kadam Mandal and scribe of Ex.P1. He stated that P.Ws.1 and 2 came to him and P.W.2 gave information in Marathi about the offence and it was translated by P.W.1 and accordingly he drafted it. 6
10. P.W.4 is also a resident of Thandra Village of Kaddam Mandal and he does hotel business. He stated that P.W.2 came to him and informed about the incident that accused and his wife had a quarrel as the accused suspected the character of his wife and accused beat his wife with a brick on her head and thereby she sustained bleeding injuries. Both P.W.2 and 4 went to the scene of offence and found the deceased with bleeding injury on her head and P.W.4 informed the incident to P.W.1.
11. P.W.5 is a photographer. He stated that at request of S.I of Police, he went to the brick batti in the outskirts of Thandra village and took the photographs of the scene of offence under Exs.P2 to P5 and thereafter went to the Government Hospital, Nirmal and took the photographs of the dead body of the deceased under Exs.P6 to P11. He handed over Exs.P2 to P11 and P12/CD to the police.
12. P.W.6 is Tahsildar of Boinpally Mandal, Karimnagar District. He stated that on 02.06.2014, he received a requisition of CI of Police of Nirmal Rural with a request to conduct inquest over the dead body of the deceased. He proceeded to Government Hospital along with L.Ws.9 and 10 7 and conducted inquest over the dead body of the deceased. Ex.P13 is the inquest panchanama. He stated that they requested the doctor for preserving the clothes of the deceased after completion of postmortem examination.
13. P.W.7 is panch witness for scene of offence and seizure panchanama and also inquest panchanama. Ex.P14 is the CDF and Ex.P15 is rough sketch.
14. P.W.8 is panch witness for confession panchanama seizure of the blood stained clothes from the accused. Ex.P16 is the admissible portion in the panchanama. It was suggested to him that he was not present at the time of alleged confession and he denied it.
15. P.W.9 is sister of the deceased. She stated that on receiving of information over the phone from P.W.1 about the death of the deceased, she along with her cousin brother went to Government Hospital, Nirmal and saw the dead body of the deceased with bleeding injuries over head and face. She stated that accused and her sister were living together and were attending the labour work in brick batti and there were disputes between them and she does not know the 8 reason for the disputes. She further stated that her sister married another person prior to living with the accused and she lived with her husband for three months and after three months her sister started living with the accused and left with him. It was suggested that P.W.1 informed that they were not aware who killed the deceased and therefore he will not pay the compensation and she denied it.
16. P.W.10 is S.I of Police. He stated that he received complaint Ex.P1 from P.W.1 and he registered the same as Cr.No.92 of 2014 under Section 302 IPC. It was suggested to him that on 01.06.2014 at 07.30 P.M., P.Ws.1 and 2 informed him over phone that some unknown persons killed the deceased, and he denied it. He stated that P.W.1 came alone to the police station and he did not record the statement of P.W.1.
17. P.W.11 is Civil Assistant Surgeon, who conducted autopsy over the dead body and he found 13 injuries and stated that injuries might have been caused with blunt object. He also stated that the cause of death is due to intra cranial bleeding due poly-trauma bleeding to cardio pulmonary arrest. He further stated that at the request of 9 the Tahsildar, he had collected the blood stained clothes of the deceased and handed over the same to the police.
18. P.W.12 is C.I of Police, who received C.D. file from P.W.10 and took up investigation. He visited the scene of offence at about 08.00 A.M., in the morning and he was at the scene approximately for 1 ½ hour. He stated that there was no out post in the Government Hospital, Nirmal. It was suggested that he has not conducted investigation properly and that the accused is falsely implicated and he denied the same.
19. As per the case of prosecution, deceased received a phone call from the phone of the accused, and as such, he developed suspicion against her character and beat her with a brick. She came out and informed the same to P.W.2 and accused also came there and beat her with brick on her face and she fell down with bleeding injuries. P.W.2 is an eye witness to the occurrence. The Trial Court observed that accused was intended to kill his wife as such he beat her with brick and caused multiple injuries and found guilty for the offence under Section 302 of IPC.
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20. Learned counsel for accused contended that when the deceased received a phone call from unknown person, on suspicion he picked up a quarrel with the deceased and beat her with brick. Due to the injuries sustained by her, she died on the same day at 11.00 P.M. He further contended that it clearly amounts to the offence under Section 304 Part-II of IPC which is a lesser offence and it is for the Court to see the manner of the offence and on which part of the body the injury was caused and other circumstances while imposing offence under Section 302 IPC.
21. As per the medical evidence, she sustained 13 injuries, in which 7 are laceration wounds, 5 are fractures and lost upper teeth.
22. Learned counsel for accused relied upon a decision rendered by the Hon'ble High Court of Bombay (Nagpur Bench) between Jayandra @ Devendra Vs State of Maharashtra 1, in which the deceased sustained 17 injuries and the death took place due to the injuries on vital organs. In the said case, it was observed that accused assaulted with stick, as such it cannot be presumed that he has intention to 1 2013 (4) AIRBomR 1099 11 cause the death though there are several injuries on the body of the deceased and accordingly convicted the accused for offence under Section 304-I IPC.
23. In this case, P.W.10 denied in the cross-examination that P.Ws.1 and 2 informed him over the phone that some unknown persons killed the deceased. He stated that P.W.1 came to the police station and gave complaint, which was drafted by P.W.3. P.W.2 clearly stated that accused beat his wife with brick. She came out of their hut and even then also accused came there and beat her with brick on her head and face, as such she sustained bleeding injury and she fell down. P.W.2 ran into the village and informed the same to P.W.4 and he in turn called P.W.1 on phone and he informed about the incident.
24. The accused beat his wife on suspicion and in a fit of anger and on grave and sudden provocation. The Apex Court in Pulicherla Nagaraju @ Nagaraja Reddy vs State of Andhra Pradesh 2, held as under:
"Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, 2 AIR 2006 SC 3010 12 as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part ll. Many petty or insignificant matters - plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a 13 stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances reference to individual cases which may throw light on the question of intention. Be that as it may."
25. In the present case, the accused and deceased were living for the past 3 ½ years. When she received a phone call from unknown person, he suspected her and picked up quarrel with her and also beat her with brick and caused multiple injuries. When she fell down, she was shifted to hospital and he went along with her to the hospital. After knowing that the deceased died, accused ran away from his place. It clearly shows that he has no intention to kill her. Therefore, this case falls under Section 304 Part-II.
26. The accused herein have completed 7 ½ years of sentence. Therefore, this Court finds that it is just and reasonable to modify the sentence as the period already undergone by him, as it falls under 304-II IPC. 14
27. In the result, the Criminal Appeal is partly allowed. The conviction and sentence of imprisonment passed in SC.No.318 of 2014 by the trial Court on 30.07.2015 against the appellant/accused for the offence under Section 302 I.P.C is modified to that of Section 304 Part-II of I.P.C and is reduced to the period already undergone by them. The appellant/accused shall be set at liberty forthwith, if he is not required in any other case. M.Os.1 to 11 shall be destroyed after the expiry of appeal time.
Pending miscellaneous petitions, if any, shall stand closed.
________________________ JUSTICE K.LAKSHMAN _________________________ JUSTICE P.SREE SUDHA DATE: 22.02.2024 CHS 15 THE HONOURABLE SRI JUSTICE K.LAKSHMAN AND THE HONOURABLE SMT. JUSTICE P.SREE SUDHA CRIMINAL APPEAL No. 817 of 2015 (per Hon'ble Smt. Justice P.Sree Sudha) DATE: 22.02.2024 CHS