Telangana High Court
Kukatla Kumar A1, Karimnagar And Anr., vs State Of Telangana, Rep Pp., on 5 September, 2024
THE HONOURABLE SRI JUSTICE K.SURENDER
AND
THE HONOURABLE SRI JUSTICE ANIL KUMAR
JUKANTI
CRIMINAL APPEAL No.123 OF 2015
JUDGMENT:
(per Hon'ble Sri Justice K. Surender) This appeal is directed against the Judgment of conviction and sentence dated 05.02.2015 in S.C.No.414 of 2013 on the file of the Judge Family Court-cum-Additional District Judge, at Karimnagar, whereby, appellants-accused Nos.1 and 2 were sentenced to undergo life imprisonment and to pay fine of Rs.1000/-, in default simple imprisonment for three months for the offence under Section 302 of Indian Penal Code, also sentenced to undergo imprisonment for a period of one year for the offence under Section 324 of Indian Penal Code (for short 'IPC'). Both the sentences of imprisonment were directed to run concurrently.
2. Heard Sri V. Raghunath, learned Senior counsel for the appellants, learned Additional Public Prosecutor for respondent-State and perused the record. 2
3. Learned Senior Counsel appearing for the appellants would submit that the accused No.2 was granted remission and he was already released from prison, as such, he confines his argument to accused No.1.
4. Briefly, the case of the prosecution is that the deceased namely Mallaiah was the younger brother of accused Nos.2 and 3 and husband of PW.1. There was distribution of landed property amongst the brothers i.e., deceased, accused Nos.2 and 3. However, according to the prosecution case, accused Nos.2 and 3 wanted additional share in the property that belongs to the deceased. For the said reason, there were constant fights among the brothers. On 21.11.2012, accused Nos.2 and 3 took cement bricks loaded in tractor around 9.00 AM and dumped bricks in front of the house of the deceased. Deceased objected for dumping of the bricks. Enraged by the deceased's objecting and obstructing to construct the compound wall, it is alleged that the appellants/accused Nos.1 to 6 formed into unlawful assembly armed with 3 sticks and beat the deceased, PWs.2, 3 and 4 and caused injuries to them. The deceased died while undergoing treatment. PWs.2, 3 and 4 were also treated in the hospital. The said incident happened on 21.11.2012 at 9.00 AM., and the complaint was lodged at 11.45 PM before the Police on the same day which is Ex.P-1.
5. In the Telugu written complaint of PW.1, she affixed her thumb impression. The names of accused Nos.1 to 6 were mentioned and it is also mentioned that all accused Nos.1 to 6 attacked the deceased and PWs.2, 3 and 4 with sticks, stones and cement bricks. The said attack by accused Nos.1 to 6 resulted in death of the deceased and injuries to PWs 2 to 4.
6. On the basis of the complaint, the police investigated the case and filed charge sheet for the offences under Sections 148, 302, 307, 324, 326 r/w 149 of IPC.
4
7. Learned Sessions Judge framed charges for the offences under Sections 148, 302, 324, 326, 307 r/w 149 of IPC.
8. During the course of trial, the prosecution examined PWs.1 to 15 of whom PW.1 is the complainant, PWs.2 to 4 are the injured eye witnesses and PW.5 is an independent eye witness.
9. Learned Sessions Judge, on considering the evidence placed on record by the prosecution found that the complicity of accused Nos.3 to 6 was not conclusively proved, as such, acquitted them extending benefit of doubt. However, the appellants/accused Nos.1 and 2 were convicted for the offences under Sections 302 and 324 of IPC.
10. Learned Senior Counsel appearing on behalf of the appellant/accused No.1 would submit that admittedly, there were disputes in between the family members i.e., witnesses PWs.1 to 4 and accused Nos.1 to 6 who belong to same family and they were fighting over the property. 5 However, the manner in which the incident had taken place has been suppressed by the prosecution. PW.14, who is the Investigating Officer admitted that the appellant/accused No.1 was hospitalized on account of the injuries along with others. When the appellant/accused No.1 was injured in the said fight, it is bounden duty of the prosecution to explain the injuries suffered by the appellant. In the absence of any explanation, the Court has to view that the actual version of the prosecution case was suppressed and a false version has been projected by the prosecution.
11. He relied on the Judgment of the Hon'ble Supreme Court in NandLal and Others vs The State of Chattisgarh1 the Hon'ble Court held:
"We will first consider the issue with regard to non- explanation of injuries sustained by accused 11 Naresh Kumar. In Lakshmi Singh V. State of Bihar 2, which case also arose out of a conviction under Section 302 r/w 149 of IPC, this Court had an occasion to consider the issue of non-explanation of injuries sustained by the accused.1
2023 10 SCC 470 2 (1976) 4 SCC 394 : 1976 SCC (Cri) 671 6 This Court, after referring to the earlier judgments on the issue, observed thus:
"12... It seems to us that in a murder case, the non- explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstances from which the Court can draw the following inferencs:
(1) That the prosecution has suppressed that genesis and the origin of the occurrence and has thus not presented the true version:
(2) That the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable. (3) That in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. In the instance case, when it is held, as it must be, that the appellant Dasrath Singh received serious injuries which have not been explained by the prosecution, then it will be difficult for the Court to rely on the evidence of PWs.1 to 4 and 6, more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused. 7
Thus neither the Sessions Judge not the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in State of Gujarath v. Bai Fatima 3 there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that if far outweighs the effect of the omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case, and the High Court was, therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises".
12. Learned Senior Counsel concluded his argument saying that the very genesis of the incident has been suppressed by the prosecution, therefore, benefit of doubt has to be extended to accused No.1. It is also the argument of the learned counsel that the specific overt act that was attributed to accused No.1 regarding beating deceased with cement brick is a complete improvement during the course of trial. It is admitted by the 3 (1975) 2 SCC 7 : 1975 SCC (Cri) 384 8 Investigating Officer that PWs.1 to 5 who have stated about accused No.1 beating the deceased with a cement brick is a complete omission in the earlier statement. The said fact also goes to show that actual version of the incident is not stated by any of the prosecution witnesses.
13. On the other hand, learned Additional Public Prosecutor submits that there is no reason why independent witness PW.5 would state against the appellant-accused No.1. Admittedly, there were disputes between the family members who are PWs.1 to 4 and the accused Nos.1 to 6.
14. Learned Additional Public Prosecutor argued that in the said circumstances, when there are disputes in between the family members and the fight happened, since the deceased died, conclusion would be that the appellant-accused No.1 and the other accused were aggressors in the incident. Merely, because accused No.1 was injured, that in itself does not mean that the version of prosecution is incorrect. If at all accused No.1 was 9 injured, burden is cast upon him to prove how the injuries were received by him and also file document to that effect. Since accused No.1 failed to file any such proof, it cannot be assumed that prosecution has suppressed the actual incident.
15. Having gone through the record, at the earliest point of time, after the incident happened around 9.00 AM, complaint was filed at 11.45 AM. Written complaint made in Ex.P1 reflects that all accused Nos.1 to 6 have attacked the deceased and also when PWs.2 to 4 came there, they were also injured by the accused. Omnibus allegations of all the accused attacking the deceased and others was mentioned. However, during the course of trial, PWs.1 to 5 witnesses specifically stated that accused No.1 has assaulted the deceased with a cement brick. During the course of trial, the prosecution has marked M.O.9, which are pieces of cement brick. The defence of the accused is that the deceased fell on a boring pump, resulting in injuries to him. 10
16. PW.14, who is the Investigating Officer, admitted that PWs.1 to 5 did not speak about accused No.1 injuring the deceased with a cement brick on his head. The said version was neither stated in the complaint nor in 161 Cr.P.C statement, which was recorded at the earliest point of time. As projected by the prosecution, there was free fight in between PWs.1 to 4 and deceased on one side and accused Nos.1 to 6 on the other.
17. Learned Sessions Judge had found that accused Nos.3 to 6 were not responsible for causing injuries and accordingly extended benefit of doubt.
18. The Hon'ble Supreme Court in Sudhir and another Vs. State of Madhya Pradesh 4, held on facts that the evidence of injured eye witnesses containing many infirmities, has to be rejected.
ii) Bandi Mallaih and others Vs. State of Andhra Pradesh 5, on facts it was held that any statement made by a witness in Court and not found in 4 (AIR 1985 SC 515) 5 (1980 (3) SCC 136 11 FIR or Section 161 Cr.P.C statement, the same has to be viewed with suspicion.
iii) Javed Shaukat Ali Qureshi Vs. State of Gujarath6, the Hon'ble Supreme Court held that where there is a similar or identical evidence of eye witnesses against two accused ascribing them same or similar role, court cannot convict one accused and acquit other, In such cases, cases of both accused will be governed by principle of parity, which means that criminal Court should decide the cases alike, and in such cases, court cannot make distinction between two accused, which will amount to discrimination".
19. As rightly argued by the learned Senior Counsel for the accused No.1, the prosecution has duty of explaining the injuries that were caused to accused No.1. Deliberately the injuries caused to accused No.1 was suppressed by the prosecution. It is evident from the admission of PW.14/Investigating Officer that accused No.1 was hospitalized with injuries. In the background of 6 (2023 (9) SCC 164) 12 the trial Court disbelieving involvement of accused Nos.3 to 6 and also the suppression by the prosecution regarding the injuries, it creates any amount of doubt regarding the projection of the incident and the manner in which the appellant and others were injured. The defence is further on the ground that all the witnesses PWs.1 to 5 have improved their earlier statement during the course of trial while implicating the accused No.1.
20. The fact remains that at the earliest point of time, it was clearly mentioned that the appellant No.1 had injured the deceased along with others, however, involvement is not disputed nor fight among the two parties. Though, the specific allegation against the accused No.1 is disputed, however, the attack by accused No.1 is consistent. For the said reasons, this Court deems it appropriate to convert the conviction under Section 302 of IPC to 304-II of IPC.
21. Hence, the conviction and sentence recorded under Section 302 of IPC is set aside and the appellant-accused No.1 is convicted for the offence under Section 304-II of 13 IPC. Since, the appellant is in jail since 05.02.2015, which is nearly none (09) years, the sentence of imprisonment is set off to the period already undergone.
22. Accordingly, the Criminal Appeal is partly allowed. The petitioner shall be set at liberty forthwith, if he is not required in any other cases. The fine amount remains unaltered.
_________________ K.SURENDER, J __________________________ ANIL KUMAR JUKANTI, J Date: 05.09.2024 mmr