Telangana High Court
Peddagadda Bapu,Chinna Bapu vs State Of Telangana on 3 June, 2024
Author: P.Sam Koshy
Bench: P.Sam Koshy
THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE SAMBASIVARAO NAIDU
CRIMINAL APPEAL No.439 of 2020
JUDGMENT:
(per the Hon'ble Sri Justice P.SAM KOSHY) The instant appeal was listed for consideration on Interlocutory Application No.1 of 2024 which is an application for suspension of sentence and grant of bail. Considering the arguments that was advanced on behalf of the learned counsel for the appellant and by the learned Public Prosecutor, we were of the considered opinion that the matter itself could be finally decided rather than hearing the application for suspension of sentence and grant of bail.
2. Heard Mr. S. Madan Mohan Rao, learned counsel for the appellant/accused and the learned Public Prosecutor appearing for the respondent/State.
3. The instant appeal under Section 374(2) of the Criminal Procedure Code, 1973 is filed by the appellant/accused challenging the judgment of conviction dated 20.11.2019 passed by the VI Additional District and Sessions Judge at Godavarikhani (for short, Page 2 of 15 the 'Trial Court') in Sessions Case No.225 of 2017 in which the appellant/accused was found guilty and stood convicted for the offence punishable under Section 302 of Indian Penal Code, 1860 (for short, 'IPC'). He was sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs.5,000/- and further in default to suffer imprisonment for a period of two (02) months.
4. The case of the prosecution in brief is that the appellant/accused is relative of the Peddagadda Bapu (hereinafter the 'deceased') and the complainant PW.1 (Peddagadda Kittaka) is the wife of the deceased. As per the prosecution case, the deceased and the appellant/accused along with two other persons Peddi Sadavali and Thatimakula Ramesh on 24.11.2015 laid a trap for hunting of wild animals in the forest with the aid of clutch wires, and as a result of the trap, a wild sheep got trapped. Since the deceased was absent from the place, the appellant/accused and the other two persons distributed the meat of the wild sheep in between three persons without giving any share to the deceased. Upon knowing the fact, the deceased went to the appellant/accused and asked for his share which was denied by the appellant/accused. It is said that the Page 3 of 15 deceased thereafter used filthy language against the appellant/ accused and abused him and he went away.
5. On 25.11.2015, at around 5:30 PM, the appellant/accused is said to have went to the house of the deceased and abused him and also tried to beat the deceased. When the deceased tried to run away from the house, the appellant/accused caught him in front of the house and picked up a cart peg and hit him on his head, forehead and back resulting in grievous injuries upon the vital part of the body of the deceased and he collapsed on the ground.
6. PWs.1 and 3 are said to have intervened and requested the accused not to further assault the deceased. Thereupon the appellant/accused fled away from the scene. PW.1 along with the aid of other villagers, PWs. 2, 4 and LW.8 arranged an auto and took the deceased to the Government Hospital at Mahadevpur, however, enroute the deceased succumbed to the injuries. Subsequently, PW.1 visited the Police Station, Mahadevpur and reported the matter basing upon which a crime was registered and the matter was in due course of time put to trial before the Trial Court. In all, the prosecution examined nineteen (19) witnesses and no witnesses were Page 4 of 15 examined on behalf of the defence. Later on, the statement of the appellant/accused under Section 313 Cr.P.C was also recorded and vide the impugned judgment, the Trial Court found the appellant/ accused guilty of causing grievous injuries to the deceased on vital part of the body resulting in his death and thereby convicted the appellant/accused to undergo rigorous imprisonment for life with fine of Rs.5,000/- and with default stipulation.
7. It is this judgment of conviction which is under challenge in the present Criminal Appeal.
8. Referring to the facts of the case, learned counsel for the appellant argued that from the narrataion of the facts as is reflected from the prosecution case itself, there appears to be no animosity between the appellant and the deceased. On the other hand, it would reveal that the deceased and the appellant and others all were well known to each other and were good friends and it was in that context they had all gone to lay trap in the jungle to catch wild sheep. According to the learned counsel for the appellant, the narration of facts would also go to show that there was no pre- meditation on the part of the appellant and that the quarrel between Page 5 of 15 the appellant and the deceased took place only on a trivial issue of non-sharing of the meat of the wild sheep which was otherwise shared by the others who had gone for the hunt. This itself is, according to learned counsel for the appellant, a sufficient indication that there was no premeditation or a predetermined mind on the part of the appellant to kill or murder the deceased, but as the quarrel between the two, i.e., the appellant and the deceased, had aggravated and as there was heated argument in a filthy language on either side, and in a fit of rage the appellant picked up a cart-peg and hit the deceased. According to learned counsel for the appellant, since the appellant hit the deceased with a cart-peg and the blow fell on the head causing grievous injuries to which the deceased later succumbed. This again, according to learned counsel for the appellant, is a strong indication of the case against the appellant not being made out for an offence under Section 302 of the I.P.C. that of culpable homicide, amounting to murder. He further contended that since the appellant has already suffered incarceration for a period of little less than five (05) years, the appellant's conviction can be one which can be converted from Section 302 to Section 304 Part-II and Page 6 of 15 the period of incarceration may be treated as sentence period for the said offence under Section 304 Part-II.
9. Per contra, the learned Additional Public Prosecutor appearing for the respondent-State, opposing the appeal, referred to the evidence of PWs.1 and 3, all of whom have categorically submitted that there is sufficient evidence to show that it was the appellant who was the aggravator and that he had gone to the house of the deceased and picked up quarrel and assaulted the deceased with a cart-peg on the head which is otherwise a vital part of the body, and therefore, the Trial Court has rightly convicted the appellant for the offence under Section 302. She further contended that it is a case where the appellant had repeatedly hit the deceased on the head which further goes to establish that he had a clear intention of killing the deceased and ensuring that he does not survive; and for this reason also, the conviction does not warrant interference.
10. Having heard the contentions put forth on either side and on a perusal of the record, particularly the evidences which have come on record more particularly the evidences of PWs.1 and 3, the case of the prosecution to the extent that there was no animosity on the part Page 7 of 15 of the appellant with the deceased prior to 24.11.2015, stands established. The relationship between the appellant and the deceased prior to 24.11.2015 was very cordial, also stands established by their conduct itself when both of them along with two more persons of the same village and neighbourhood had decided to lay a trap to catch wild sheep in the forest. It appears that though they had planned to lay a trap together but after laying of the trap, the deceased is said to have gone back leaving behind the other three people in search of the hunt and when they got the trap, the meat was not shared with the deceased which infuriated the deceased. Therefore, the deceased went to the house of the appellant and picked up a quarrel using filthy language and left the house of the deceased. When the deceased went to the house of the appellant again, the deceased picked up a quarrel on the same issue and in the course of quarrel which turned into a physical fight, the appellant is said to have picked up a cart-peg and assaulted the deceased.
11. It is not the case of the prosecution nor was it stated by any of the witnesses that the appellant went to the house of the deceased along with cart-peg / cart-stick to be used as a weapon to assault Page 8 of 15 the deceased. On the other hand, it appears that the appellant picked up the cart-peg which was lying in the house of the deceased in the course of fight. The aforesaid factual backdrop itself gives us a strong indication that there was no indication on the part of the appellant to kill the deceased. Further what is also evident is that the fight between the appellant and the deceased took place for a trivial issue of sharing of the meat of the wild sheep which they got the previous night after laying trap in the jungle. It is in this context that it becomes necessary to consider whether the above act on the part of the appellant in assaulting the deceased first and secondly the injuries which led to death later, would come within the purview of Section 302 of I.P.C. or not. A perusal of the post-mortem report would show that there were four injuries which were detected on the body of the deceased, viz., (1) laceration of size 1.5 cm. x 6 c.m. on the left frontal region of head and hematoma is seen in left frontal lobe of head; (2) laceration of size 7 x 2 x 1 c.m. on right parieto occipital region of head and blood clot is seen in parietal lobe extending into occipital lobe. Fracture of skull bone in right parieto occipital region of size 14 x 6 c.m.; (3) bluish discoloration of left Page 9 of 15 upper eye lid is present; and (4) contusion mark of size 13 x 3 c.m. is seen below right scapula.
12. A plain reading of the aforesaid four injuries would reveal that injury Nos.1 and 2 are the only two injuries which the deceased suffered on the left side of the forehead and also on the right parieto occipital region of the head. The other two injuries were incidental injuries and were not on account of separate blows but were as a result of the first two injuries. This again would show that in fact there was only two major blows given by the appellant on the deceased.
13. Taking into consideration the aforesaid legal precedents and which have since been followed by practically every High Court in such similar cases where the assault is on account of a dispute which arose for a trivial issue and which got aggravated into a fit of fury and anger, the accused assaulted the deceased with one or two blows which incidentally landed on the vital part of the body resulting in death.
14. In the given factual backdrop, it is now necessary to consider a couple of decisions in this regard. The High Court of Kerala in the case Page 10 of 15 of Raman vs. State of Kerala 1 in paragraph Nos.12 to 17 held as under:
"12. The learned counsel for the appellant submitted that the evidence of PWs. 1 to 3 cannot be believed. She submitted that the behaviour of PW 1 is suspicious since he did not go to the house of the accused on the information given by the accused that the deceased did not take water and the accused had beaten her. The learned counsel also submitted that the recovery of material objects is doubtful and many blood stained articles Page: 2993 alleged to have been seized by the police were not sent for Chemical Analysis. The learned counsel also submitted that even assuming that the accused has committed any offence, it would not attract Section 302 of the IPC and at best, the offence would be one under the second part of S. 304, IPC.
13. She also relied on the decision of the Supreme Court in Kusha Laxman Waghmare v. State of Maharashtra (AIR 2014 SC 3839).
14. As stated earlier, there is nothing to disbelieve the evidence of PWs. 1 to 3. We do not also think that the conduct and behaviour of PW 1 was suspicious in the facts and circumstances. MOs. 1 to 3 were seized as per Ext. P4 Scene Mahazar. As rightly held by the court below, we do not think that MOs. 1 and 3 were recovered as per Ext. P3 Mahazar. The prosecution case to that extent is not believable.
15. In Kusha Laxman Waghmare v. State of Maharashtra (AIR 2014 SC 3839), the Supreme Court held thus:--
"After giving our anxious consideration in the matter and after analysing the entire evidence, we are of the view that it is not a fit case where conviction could be sustained under Section 302, IPC. The weapon used by the appellant is a wooden 1 2015 SCC Online Ker 39691 Page 11 of 15 stick and as per the prosecution case, the deceased was severely beaten by the said stick. As a result thereof, she died. There is no cogent evidence to show that the appellant had beaten the deceased with an intention to cause her death. In such circumstances, the conviction of the appellant under Section 304, Part-II, IPC will be just and proper.
16. In Anil v. State of Kerala (2014 (4) KLT 489), a Division Bench of this Court held thus:
"But, the nature of the transaction and all attendant circumstances would clearly show that the alleged acts, though could have been done with the knowledge that they are likely to cause death, were evidently done without any intention to cause death or to cause such bodily injury as is likely to cause death. Under such circumstances, we are of the view that the legal evidence on record proves, only that the accused had committed the offence punishable under Part-II of S. 304, IPC. The conviction and sentence are, therefore, to be altered accordingly."
17. Ext. P4 Scene Mahazar shows that one crow bar and a hammer were found in the house of the accused. There is no case that the crow bar or hammer were used by the accused to beat his wife. On the other hand, the specific case of the prosecution is that the accused inflicted injuries on the deceased with M.O. 1 and M.O. 2. When PW 9 was examined, he was asked whether the injuries could be caused with M.O. 1 stick. It is also alleged that M.O. 3 stem of a coconut leaf was also used for inflicting the injuries. From the facts and circumstances, it is not discernible that the injuries were inflicted with an intention to cause the death of the victim or to cause such bodily injury as is likely to cause death. However, it is clear that the acts were done by the accused with the knowledge that it is likely to cause death of the victim. We are of the view that the offence under Section 302, IPC is not attracted in the case and only an offence under Section 304 Part-II, IPC is made out."
Page 12 of 15
15. Further, the Hon'ble Supreme Court in the case of Lavghanbhai Devjibhai Vasava vs. State of Gujarat 2 laying down the basic parameters to consider while deciding the question as to whether a case falls under Section 302 IPC or Section 304 IPC in paragraph Nos. 6 to 8 as held as under:
"6. We have perused the evidence in this behalf. We find that the prosecution case itself proceeds that the incident took place in the spur of moment. On 15-3-2008, when the deceased along with her mother went for labour work in agricultural field and she returned home around noon, she was preparing lunch in the kitchen when, as per the prosecution story, the appellant came to the house and questioned the deceased about delay in cooking lunch. On this, altercation took place between the appellant and his wife. At that stage, the appellant got furious and in a rush of the moment, he picked a wooden object lying near the place of incident and inflicted injury to the deceased. It is also an admitted case of the prosecution that only one single blow was inflicted. The death of Shakuben took place 10 days after the said incident while she was undergoing treatment at Baroda Hospital. This is the case of the prosecution itself.
7. This Court in Dhirendra Kumar v. State of Uttarakhand [Dhirendra Kumar v. State of Uttarakhand, 2015 SCC OnLine SC 163] has laid down the parameters which are to be taken into consideration while deciding the question as to whether a case falls under Section 302 IPC or Section 304 IPC, which are the following:
(a) The circumstances in which the incident took place;
(b) The nature of weapon used;
(c) Whether the weapon was carried or was taken from the spot;2
(2018) 4 SCC 329 Page 13 of 15
(d) Whether the assault was aimed on vital part of body;
(e) The amount of the force used.
(f) Whether the deceased participated in the sudden fight;
(g) Whether there was any previous enmity;
(h) Whether there was any sudden provocation.
(i) Whether the attack was in the heat of passion; and
(j) Whether the person inflicting the injury took any undue advantage or acted in the cruel or unusual manner.
8. Keeping in view the aforesaid factors it becomes evident that the case of the appellant would fall under Section 304 IPC as the incident took place due to a sudden altercation which was a result of delay in preparing lunch by the deceased. The appellant picked up a wooden object and hit the deceased. The medical evidence shows that not much force was used in inflicting the blow to the deceased. The prosecution has not set up any case suggesting that relationship between the husband and wife was not cordial, otherwise. Manifestly, the incident took place due to sudden provocation and in a heat of passion the appellant had struck a blow on his wife, without taking any undue advantage. We are, therefore, of the opinion that it was an offence which would be covered by Section 304 Part II IPC and not Section 302 IPC."
16. Similar are the facts in the instant case as well, i.e., those which are narrated in the preceding paragraphs. Thus, we have no hesitation in reaching to the conclusion that the conviction of the appellant under Section 302 of I.P.C. is not proper, legal and justified and in fact, the appellant is guilty of having committed the offence Page 14 of 15 under Section 304 Part II, i.e., culpable homicide not amounting to murder and he stands convicted for the said offence.
17. Therefore, it is accordingly ordered that the appeal stands partly allowed to the extent that the conviction under Section 302 stands set aside. However, the appellant stands convicted for the offence under Section 304 Part-II. However, as regards the sentence is concerned, considering the fact that the appellant had only remained in jail for a period less than five (05) years and taking into consideration the overall gravity of the injury and also the fact that it was the appellant who was the aggravator and who has gone to the house of the deceased, we are of the considered opinion that the appellant is liable to undergo Rigorous Imprisonment (R.I.) for a period of seven (07) years. The fine amount awarded by the Trial Court remains the same. The appeal thus stands partly allowed. The appellant's conviction under Section 302 of I.P.C. stands set aside. However, the appellant stands convicted for the offence under Section 304 Part-II and he is ordered to undergo Rigorous Imprisonment (R.I.) for a period of seven (07) years with a fine amount of Rs.5,000/-. In default of fine amount, the appellant shall suffer simple imprisonment for two (02) months. Page 15 of 15
18. Accordingly, the Criminal Appeal stands partly allowed.
19. As a sequel, miscellaneous applications pending if any, shall stand closed.
__________________ P. SAM KOSHY, J ___________________________ SAMBASIVARAO NAIDU, J Date: 03.06.2024 GSD