Andhra Pradesh High Court - Amravati
Chandragiri Ashok, Nellore., vs The State Of Ap., Rep Pp., on 5 August, 2024
Author: K Suresh Reddy
Bench: K Suresh Reddy
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3486]
(Special Original Jurisdiction)
MONDAY,THE FIFTH DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE K SURESH REDDY
and
THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY
CRIMINAL APPEAL Nos.1280 OF 2016, 1295 OF 2016
& 1312 OF 2016
Between:
...APPELLANTS
V.Dileep Kumar @ Dileep & another
AND
...RESPODENT
The State Of A P
Counsel for the Appellants:
Sri T.Pradyumna Kumar Reddy, learned senior counsel
appearing for the learned counsel for appellant/A.1;
Sri D.Kodandarami Reddy, counsel for appellant/A.2;
Sri T.Nagarjuna Reddy, counsel for appellant/A.3
Sri Vijaya Saradhi, counsel for appellant/A.4
Counsel for the Respondent:
1. PUBLIC PROSECUTOR (AP)
The Court made the following:
Page 2 of 43
THE HONOURABLE SRI JUSTICE K.SURESH REDDY
AND
THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY
CRIMINAL APPEAL Nos.1280 OF 2016, 1295 OF 2016
& 1312 OF 2016
COMMON JUDGMENT:
(Per the Hon'ble Sri Justice K.Sreenivasa Reddy)
Appellants in Criminal Appeal No.1280 of 2016 are
A.1 and A.4, appellant in Criminal Appeal No.1295 of 2016
is A.3 and appellant in Criminal Appeal No.1312 of 2016 is
A.2, in Sessions Case No.277 of 2013 on the file of the I
Additional Sessions Judge, Nellore. They preferred the
respective appeals challenging the conviction and sentence
recorded against them in the judgment dated 14.12.2016
in the aforesaid Sessions Case.
2. Vide the impugned judgment, the learned
Sessions Judge found A.1, A.3 and A.4 guilty of the offence
punishable under Section 302 read with 34 IPC and found
A.2 guilty of the offences punishable under Sections 302
and 324 IPC, and accordingly convicted them of the said
offences and sentenced A.1, A.3 and A.4 to undergo
imprisonment for life and to pay fine of Rs.2,000/- in
default to suffer simple imprisonment for a period of three
months for the offence punishable under Section 302 read
with 34 IPC, and sentenced A.2 to undergo imprisonment
for life and to pay fine of Rs.2,000/- for the offence
punishable under Section 302 IPC and to undergo rigorous
imprisonment for a period of two years for the offence
punishable under Section 324 IPC. All the sentences are
directed to run concurrently.
3. The substance of charge against the accused is
that on 30.12.2010 at about 5.30 PM near Axis Bank ATM,
B.S.N.L. Office, Leela Mahal Road, Nellore, all the accused
caused death of one Ummadisetty Sai Kumar (hereinafter
referred to, as 'the deceased'); A.2 stabbed the deceased
with a knife; A.1, A.3 and A.4 had common intention to kill
the deceased whereas A.1 instigated A.2 to kill the
deceased while A.3 and A.4 caught hold of the deceased.
4. Case of the prosecution, in brief, is that the
deceased and all the material prosecution witnesses are
residents of Nellore. The deceased is son of P.W.2. P.W.2
is maternal uncle of P.W.1. P.Ws.8 and 9 were students of
Krishna Chaitanya Degree College, Nellore. The deceased
and A.1 were studying in the same college. About one
month prior to the incident, the deceased, P.W.8, P.W.9,
A.1 and others went to Mypadu beach, where they saw A.1
and one Aparna (L.W.13) moving closely in the beach.
P.Ws.8 and 9 informed the same to the deceased. Then
the deceased started teasing A.1 stating 'Mypadu Mypadu'.
Thereupon, the deceased and A.1 quarrelled with each
other. A.1 went and complained to P.W.10, who was
working as a Lecturer in Krishna Chaitanya Degree
College, Nellore, stating that his friends were commenting
them. Then, P.W.10 summoned the deceased and his
friend P.W.9 and told not to comment them and also
chastised them. P.W.9, the deceased and others came out
of the college and were standing. Then, A.1 brought A.2 to
A.4 along with him and warned P.Ws.8 and 9 and left the
place. On the next day, according to P.W.8, after
completion of classes, P.W.8, P.W.9 and the deceased came
out of the class room. Then, it is alleged that the accused
came and picked up a quarrel with the deceased. P.Ws.8
and 9 chastised them and left. P.W.1, a relative of the
deceased, was also present. P.W.1 also chastised A.1 and
other students present there. After the incident, the
deceased and P.W.1 went to purchase clothes. P.W.1
questioned the deceased about the attitude of A.1. The
deceased informed P.W.9 and others that P.W.9 and
others, including him, were teasing A.1 as 'Mypadu-
Mypadu' and therefore, A.1 bore grudge against him.
P.W.1 admonished the deceased not to have such quarrels.
When P.W.1 and the deceased reached A.T.M. Centre, near
BSNL Office, Nellore, it is alleged that A.1 to A.4 came
there and pushed P.W.1 and the deceased towards ATM
centre on the road. A.1 stated 'Ekkadiki ra naa
kodakallara veluthunnaru'. Thereafter, A.1 beat the
deceased with hands on his face. A.2 to A.4 instigated A.1
to beat the deceased. When A.1 again went towards the
deceased, P.W.1 intervened and pushed A.1 questioning as
to why he was beating the deceased. Then, A.1 asked A.2
to kill the deceased. On that, A.2 picked up a knife and
was about to attack the deceased. Then, P.W.1 went to his
rescue and received a stab injury on his left arm above
elbow. It is further alleged that A.3 and A.4 caught hold
of the deceased and A.2 stabbed the deceased on the left
side of his stomach. Thereafter, A.2 stated 'Chacharu ra
naa kodukulu'. Thereafter, A.1 to A.4 ran away. Mean
while, 20 to 30 persons gathered there, including P.W.6.
The deceased received a bleeding injury. P.W.1 tried to
secure an auto to shift the deceased to a hospital. Mean
while, P.W.3, a friend of P.W.1, was going on a motor cycle
on that way. P.W.1 stopped him and requested him to
take the injured to hospital. P.W.3 took the deceased on
his motor cycle to Jaya Bharath Hospital, Nellore. P.Ws.1,
4 and 5 helped the injured to sit on the back of the bike of
P.W.3 and then P.W.1 was going by walk to the hospital.
Meanwhile, P.W.1 informed P.W.2 about the incident.
When P.W.1 was proceeding towards Leela Mahal Cine
Theatre, P.Ws.3 and 4 took him in an auto to the hospital.
P.W.3 advised P.W.1 to take treatment. The deceased
became unconscious. P.W.17, Duty Doctor, examined
P.W.1 and found a lacerated injury of 10 x 1 cm on antero
medical surface of left mid arm. P.W.16-Head Constable,
IV Town police station, Nellore, received hospital
intimation from Jaya Bharath Hospital, Nellore at 7.00 PM
on 30.12.2010, immediately went to the hospital and
recorded Ex.P1-statement of P.W.1. Ex.P27 is the
endorsement of the Doctor on Ex.P1.
P.W.18, Sub Inspector of Police, IV Town police
station, Nellore, on receipt of hospital intimation along
with Ex.P1-statement, registered a case in crime No.304 of
2010 for the offences under Sections 324, 307 read with
34 IPC, under Ex.P29-FIR. On receipt of death intimation,
he altered the Sections of law to the offences under
Sections 324, 307, 302 read with 34 IPC and issued
Ex.P30 altered FIR. P.W.19, Inspector of Police, Nellore
Town police station, took up investigation, visited Jai
Bharath Hospital, Nellore, examined P.W.1 and recorded
his statement under Section 161 CrPC. On the next day
i.e. on 31.12.2010, he observed the scene of offence and
prepared Ex.P31-rough sketch of the scene of offence. He
held inquest over the dead body of the deceased in the
presence of P.W.12 and others under Ex.P20-inquest
report. At the time of inquest, P.Ws.2 to 5 were examined
and their statements were recorded.
P.W.14-Civil Assistant Surgeon, DSR Government
Hospital, Nellore conducted autopsy over the dead body of
the deceased at about 3.50 PM on 31.12.2010 and issued
Ex.P23A-post mortem certificate. According to the Doctor,
the deceased died of shock and haemorrhage due to injury
to heart (left ventricle). On 07.01.2011, P.W.19 arrested
A.1 and A.2 in the presence of P.W.13 and others, and on
interrogation, they gave confession, and pursuant to the
same, police seized M.O.1-button knife from the bushes in
the back side of the dilapidated building near C.A.M. High
School, Nellore. After completion of investigation, P.W.19
filed the charge sheet.
5. In support of its case, prosecution examined
P.Ws.1 to 19 and got marked Exs.P1 to P32, including
Ex.P23A, besides case properties M.Os.1 to 3. After
completion of prosecution side evidence, the accused were
examined under Section 313 CrPC to explain the
incriminating circumstances appearing against them in
the evidence of prosecution witnesses. The accused denied
the same. D.W.1 was examined and Exs.D1 to D6 were
got marked on behalf of the defence. The learned Sessions
Judge, after appreciation of the evidence on record,
convicted and sentenced the appellants, as stated supra.
Challenging the same, the present Criminal Appeals are
preferred.
6. Learned senior counsel Sri T.Pradyumna Kumar
Reddy appearing for the learned counsel for appellant/A.1
and also representing the other counsel, submitted that
there is absolutely no motive for the accused to cause
death of the deceased; that the only reason that is alleged
by the prosecution is that the deceased was teasing A.1 as
'Mypadu-Mypadu', and therefore, the accused bore grudge
against the deceased; that the motive which is alleged by
the prosecution is weak and the same cannot be accepted.
The learned senior counsel further submitted that the
learned Sessions Judge disbelieved the evidence of P.Ws.4
and 5, who are arrayed as eye-witnesses to the incident.
He further submitted that A.2 to A.4 are strangers and no
test identification parade was conducted by police, and
after lapse of five years of the alleged incident, prosecution
witnesses identified A.2 to A.4 for the first time in the
Court only, and in the absence of conducting test
identification parade, it is highly difficult for any of the
prosecution witnesses to identify strangers/unknown
persons for the first time in Court. He submitted that the
evidence of prosecution witnesses with regard to presence
or participation of A.3 and A.4 is clearly an improvement
and the same cannot be basis to convict A.3 and A.4. The
learned senior counsel further submitted that entire
investigation is perfunctory and police did not seize
bloodstained clothes of P.W.1 or the deceased. He further
submitted that medical evidence does not concur with the
ocular testimony. According to him, M.O.1 is a sharp-
edged weapon, but the opinion of the Doctor goes to show
that the injury received by the deceased is a lacerated one,
and the learned Sessions Judge has not appreciated the
evidence on record in right perspective and erred in
convicting and sentencing the appellants. Hence, he prays
to set aside the impugned judgment.
7. Sri D.Kodandarami Reddy, learned counsel for
appellant/A.2, Sri T.Nagarjuna Reddy, learned counsel for
appellant/A.3 and Sri Vijaya Saradhi, learned counsel for
appellant/A.4, concurred with the submissions made by
the learned senior counsel and adopted his arguments.
8. On the other hand, learned Assistant Public
Prosecutor appearing for respondent-State contended that
motive for the accused to cause death of the deceased
would become insignificant since there are eye-witnesses
to the incident. According to him, P.W.1 is the injured eye
witness and he deposed about the incident in clear terms
and nothing has been elicited in his cross-examination to
tilt the case of prosecution. He further submitted that
medical evidence does corroborate with the ocular
testimony and a few discrepancies which occurred in the
course of cross examination would not in any way go to
the root of the case, which calls for interference by this
Court to convert the order of conviction into an order of
acquittal. According to him, the judgment passed by the
learned Sessions Judge is well reasoned and there are no
grounds to interfere with the impugned judgment.
9. Now, the point that arises for determination is
whether the prosecution is able to bring home the guilt of
the appellants for the charges levelled against them,
beyond reasonable doubt?
10. The deceased is son of P.W.2. P.W.2 is maternal
uncle of P.W.1. According to P.W.1, on 30.12.2010 at
about 5.00 PM, he was near Sanghamitra School. He
called the deceased and stated that he had to purchase
clothes for him. The deceased informed P.W.1 that he was
near college and asked him to come over there by 5.30 PM.
When P.W.1 went to the college, the deceased, P.Ws.8 and
9 were present there and they were chit-chatting. At that
time, A.1 went there and questioned the deceased as to
why he was talking about him and his girlfriend. A.1
threatened the deceased that he would do away with him.
P.W.1 chastised the accused as they were all students.
A.1 then left the place threatening with dire consequences.
P.Ws.8 and 9 also left the place. Then, P.W.1 and the
deceased started going towards VRC Centre, Nellore by
walk talking about the incident. The deceased informed
P.W.1 that P.W.9 and others were teasing A.1 as "Mypadu-
Mypadu" and the deceased also teased him like that twice
or thrice and therefore A.1 bore grudge against him. P.W.1
admonished the deceased not to have any such quarrels.
They both together went to ATM Centre near BSNL Office,
Nellore. It was about 6.00 PM. Then, A.1 to A .4 went
there and pushed P.W.1 and the deceased towards ATM
Centre on the road. A.1 uttered towards the deceased as
'Ekkadiki ra naa kodakallara veluthunnaru'. A.1 beat the
deceased with his hands on his face. A.2 to A.4 instigated
A.1 to beat the deceased. When A.1 again went towards
the deceased to beat him, then P.W.1 intervened and
pushed A.1 questioning him as to why he was beating the
deceased. A.1 asked A.2 to kill the deceased. A.2 took a
knife and when he was about to give a blow on the
deceased, P.W.1 went to rescue of the deceased and
sustained a stab injury on left arm above the elbow.
Thereafter, A.3 and A.4 caught hold of the deceased, A.2
stabbed the deceased on left side of his stomach and then
uttered 'chacharu ra naa kodukulu' and all the accused
ran away by saying so.
11. On a perusal of Ex.P29-First Information Report
goes to show that it is stated in the FIR that on the date of
the incident, A.1 instigated A.2 to kill the deceased. When
A.2 tried to stab the deceased with a knife, P.W.1
intervened and a blow struck on left elbow of P.W.1.
Thereafter, once again, A.2 stabbed the deceased with
knife on left side of the stomach abusing him to die. On
that, blood started coming out from the stomach of the
deceased. A perusal of the recitals in the FIR, there is no
reference to the effect that A.3 and A.4 were holding the
deceased nor facilitated A.2 to deal with a blow on the
deceased. It is stated in the earliest point of time that A.3
and A.4 were standing beside the deceased. On a perusal
of the evidence of P.W.1, it goes to show that the said
aspect is clearly an improvement from the FIR to the
evidence that has been recorded in the Court. If really,
A.3 and A.4 caught hold the deceased, there is no reason
as to why the said fact has not been stated at the earliest
point of time. In the absence of any recital in the FIR on
the material aspect that A.3 and A.4 caught hold of the
deceased nor facilitated A.2 to deal with a blow on the
deceased, the present theory that A.3 and A.4 were holding
the deceased, appears to be brought into existence after
lapse of five years after due deliberations. The said version
is clearly an improvement which would go to the root of
the case. In view of the same, this Court has no hesitation
to hold that the evidence of P.W.1 with regard to
participation of A.3 and A.4 in commission of the offence,
as alleged by the prosecution, is clearly an improvement
and the same cannot be the basis to convict the A.3 and A.4.
12. P.W.2 is father of the deceased. According to
his evidence, on 30.12.2010 at about 6.30 PM, he received
information from P.W.1 that A.1 to A.4 stabbed the
deceased and P.W.1. On that, P.W.2 reached Jaya
Bharath Hospital, Nellore at about 6.45 PM. The deceased
and P.W.1 were being treated by the Doctor. On
questioning by P.W.2, P.W.1, who was undergoing
treatment, stated that A.1 to A.4 stabbed the deceased and
himself. P.W.1 also explained the reason for the attack on
the deceased.
13. P.W.3 is known person to P.W.1. According to
his evidence, on the date of the incident at about 6.00 PM,
he was going by motor bike from Z.P. Centre to V.R.C.
Centre, Nellore and when he reached near ATM Centre,
BSNL Office, Nellore, P.W.1 called him by his name and on
that he went near P.W.1 and questioned him as to what
happened. He noticed bleeding injury on the left arm of
P.W.1 and blood oozing from left side of stomach of the
deceased. P.W.1 asked him to take the deceased to Jaya
Bharat Hospital, and P.Ws.4, 5 and 1 lifted the deceased
on his motor bike and he took the deceased to the
Emergency Casualty of the said hospital and thereafter
P.W.1 came to the hospital in an auto.
14. P.Ws.4 and 5, who are alleged to be eye
witnesses to the incident, in one voice, stated that they
heard A.2 saying 'ray Dileep memu unnamu veella
sangathi choodu'; that the deceased, P.W.1 and A.1 to A.4
were present there; A.1 beat the deceased on his face and
pushed P.W.1 aside; A.1 uttered to A.2 'Ashok anna
manamu podichedaniki Vacchi Kottedi Entee, Podicheyi
Na Kodukulu Iddarini'. It is stated that thereafter, A.3 and
A.4 caught hold of the deceased and A.1 stabbed P.W.1,
and when P.W.1 raised his hand, he sustained injury
above the left elbow; that A.2 pushed P.W.1 aside after
stabbing; then A.2 stabbed the deceased on the left side of
his stomach with a knife; that the crowd shouted to catch
hold of the accused and then A.2 shouted as 'chaccharu
na koduku' and ran towards Anitha Theatre, Nellore.
15. Learned Sessions Judge opined that the
evidence of P.Ws.4 and 5 runs in the same lines.
According to the prosecution, they were coming on a motor
bike at the time of the incident and noticed crowd at the
scene of offence. P.Ws.4 and 5 were doing real estate
business. Their evidence does not reveal how they got
acquaintance with the deceased or P.W.1. It is relevant to
state that P.W.1 does not know wherefrom P.Ws.4 and 5
came. The learned Sessions Judge further held that the
evidence of P.W.1 or P.Ws.4 and 5 does not establish how
P.Ws.1, 4 and 5 got acquaintance with each other because
they are in two different fields and therefore, the evidence
of P.Ws.4 and 5 cannot be considered. Accordingly, the
learned Sessions Judge disbelieved the evidence of P.Ws.4
and 5.
16. P.W.7 did not support the case of prosecution
and he was treated as hostile by the prosecution.
17. P.W.6 was doing business in cool drink shop.
According to him, he saw four persons quarrelling with two
persons near Axis Bank ATM Centre, Nellore. He further
deposed that four persons stabbed two persons and he can
identify those persons, who stabbed. According to him,
they are none other than A.1 to A.4 standing in the dock.
He further deposed that he did not observe what had
happened later due to fear. The accused are strangers to
P.W.6 and it is difficult for anybody to identify the accused
in the absence of test identification parade conducted by
police.
18. P.Ws.8 and 9 were the students of Krishna
Chaitanya Degree College, Nellore, doing their B.Com.
course along with the deceased and the accused.
According to them, on the date of the incident, the accused
quarrelled with the deceased. A.1 gave a complaint to
P.W.10, who was Lecturer in Computers in the said
college. Thereafter, the accused warned the deceased. On
the same day evening, the accused went along with some
other people at about 5.30 PM and warned P.Ws.8, 9 and
the deceased, wherein A.2 to A.4 standing in the dock were
brought by A.1. On the next day, after completion of
classes, once again, the accused picked up a quarrel with
the deceased. P.Ws.8 and 9 chastised them and went
away. P.W.1 was present along with the deceased. On the
next day morning, P.Ws.8 and 9 came to know about the
said incident in T.V. Admittedly, both the witnesses
P.Ws.8 and 9 did not witness the incident in question.
They only spoke with regard to the earlier incident which
transpired between the accused and the deceased.
19. P.W.10 is the Lecturer, who deposed that A.1
came to him and complained that his friends were
commenting on him. Then, he called P.W.9 and the
deceased and admonished not to comment on A.1. Two
days later, he came to know that the deceased died near
BSNL office, Nellore. It is thus established from the
evidence of P.Ws.8 to 10 that there was a complaint made
by A.1 against the deceased with regard to rediculating A.1
by the deceased and in connection with that, P.W.10 called
the deceased and P.W.9 and admonished them not to
make any comments.
20. As regards the contention of the learned senior
counsel that because A.2 to A.4 are strangers, in view of
non-conducting test identification parade by the police,
would be fatal to the case of the prosecution, and
identification of A.2 to A.4 by the material prosecution
witness for the first time in the Court after lapse of five
years has no value, it is pertinent to refer to a decision of
the Hon'ble Apex Court in Sheo Shankar Singh v. State of
Jharkhand and another1, wherein it is held thus:
"46. It is fairly well settled that identification of the
accused in the court by the witness constitutes the
substantive evidence in a case although any such
identification for the first time at the trial may more often
than not appear to be evidence of a weak character. That
being so a test identification parade is conducted with a
view to strengthening the trustworthiness of the evidence.
Such a TIP then provides corroboration to the witness in
the court who claims to identify the accused persons
otherwise unknown to him. Test identification parades,
therefore, remain in the realm of investigation.
47. The Code of Criminal Procedure does not oblige the
investigating agency to necessarily hold a test
identification parade nor is there any provision under
which the accused may claim a right to the holding of a
test identification parade. The failure of the investigating
agency to hold a test identification parade does not, in that
view, have the effect of weakening the evidence of
identification in the court. As to what should be the weight
attached to such an identification is a matter which the
court will determine in the peculiar facts and
circumstances of each case. In appropriate cases the court
may accept the evidence of identification in the court even
without insisting on corroboration.
2011 (20 ALD (Crl.) 360 (SC)
48. The decisions of this Court on the subject are legion. It
is, therefore, unnecessary to refer to all such decisions. We
remain content with a reference to the following
observations made by this Court in Malkhansingh v. State
of M.P. [(2003) 5 SCC 746 : 2003 SCC (Cri) 1247] : (SCC
pp. 751-52, para 7)
"7. It is trite to say that the substantive evidence is
the evidence of identification in court. Apart from the
clear provisions of Section 9 of the Evidence Act, the
position in law is well settled by a catena of decisions
of this Court. The facts, which establish the identity of
the accused persons, are relevant under Section 9 of
the Evidence Act. As a general rule, the substantive
evidence of a witness is the statement made in court.
The evidence of mere identification of the accused
person at the trial for the first time is from its very
nature inherently of a weak character. The purpose of
a prior test identification, therefore, is to test and
strengthen the trustworthiness of that evidence. It is
accordingly considered a safe rule of prudence to
generally look for corroboration of the sworn
testimony of witnesses in court as to the identity of
the accused who are strangers to them, in the form of
earlier identification proceedings. This rule of
prudence, however, is subject to exceptions, when, for
example, the court is impressed by a particular
witness on whose testimony it can safely rely, without
such or other corroboration. The identification
parades belong to the stage of investigation, and there
is no provision in the Code of Criminal Procedure
which obliges the investigating agency to hold, or
confers a right upon the accused to claim a test
identification parade. They do not constitute
substantive evidence and these parades are
essentially governed by Section 162 of the Code of
Criminal Procedure. Failure to hold a test
identification parade would not make inadmissible the
evidence of identification in court. The weight to be
attached to such identification should be a matter for
the courts of fact. In appropriate cases it may accept
the evidence of identification even without insisting on
corroboration. (See Kanta Prashad v. Delhi Admn. [AIR
1958 SC 350 : 1958 Cri LJ 698] , Vaikuntam
Chandrappa v. State of A.P. [AIR 1960 SC 1340 : 1960
Cri LJ 1681] , Budhsen v. State of U.P. [(1970) 2 SCC
128:1970 SCC (Cri) 343] and Rameshwar Singh v.
State of J&K [(1971) 2 SCC 715:1971 SCC (Cri)638] .)"
21. Test identification parade is conducted only
with a view to strengthen trustworthiness of evidence of a
witness and it provides corroboration to the witness in the
Court who claims to identify the accused person not
known to him. It is also settled that identification of the
accused in the Court by a witness constitutes substantive
evidence. The weight to be attached to such an
identification is a matter which has to be determined by
the Court in the peculiar facts and circumstances of each
case. Therefore, non-conducting of test identification
parade will not by itself is fatal to the case of prosecution.
22. A perusal of the entire evidence on record goes
to show that the evidence of P.W.1 is crucial for the reason
that he is the injured witness and his evidence has to be
taken on a high pedestal. Except the evidence of P.W.1,
there is no other evidence to connect the accused to the
crime. In view of the said reasons, the evidence of P.W.1
has to be scrutinized carefully. P.W.1, who is relative of
the deceased, was present at the college when there was
argument between the accused and the deceased took
place. He along with P.Ws.8 and 9 was present there. All
of them chastised A.1 not to do so as they are students.
Thereafter, P.W.1 and the deceased were proceeding to buy
clothes for P.W.1. P.W.1 categorically deposed that he had
seen A.1 to A.4 at close quarters and observed their
actions at the college and at the place where the alleged
incident is said to have taken place. He spoke all the
specific overt-acts against A.2 on the deceased and the
injuries sustained by him would be sufficient for P.W.1 to
identify A.2 in the Court. Having received the injury from
the accused and having seen dealing with blow on the
deceased, would not in any way depose falsely in
identifying A.2. Therefore, it would constitute sufficient
identification and absence of conducting test identification
parade cannot be taken as a serious lapse in identifying
the accused by P.W.1. In view of the said reason, this
Court has no hesitation to hold that the prosecution
established identity of A.2 as the assailant from the
evidence of P.W.1.
23. The other contention raised by the learned
senior counsel appearing for the appellants is that blood
stained clothes of P.W.1 or the deceased were not seized by
the prosecution and the same is fatal to the prosecution
case. The learned Assistant Public Prosecutor appearing
on behalf of the State submitted that merely because blood
stained clothes were not seized by the prosecution, it
would not in any way be fatal to the prosecution case. On
this aspect, it is pertinent to refer to a decision in Karri
Nageswara Rao @ Bujji and another v. State of Andhra
Pradesh2, wherein it is held that failure on the part of the
police in seizing blood stained clothes by itself is not a
ground to disbelieve presence of P.W.2 therein at the scene
of offence. Therefore, mere non-seizure of blood stained
clothes of either P.W.1 or the deceased, by itself, is not a
ground disbelieve the presence of P.W.1 at the scene of
offence.
24. Insofar as A.1 is concerned, except the
accusation to the extent that he instigated A.2 to kill the
deceased, there are no other incriminating factors so as to
come to a conclusion that A.1 along with A.2 had common
intention of causing death of the deceased. It is pertinent
to mention here that all the accused, the deceased and
P.W.1 had a quarrel prior to the incident. Merely because
there is a quarrel, it cannot be inferred that A.2 would be
carrying a knife like M.O.1 with an intent to deal with a
2016 (2) ALD (Crl.) 425
blow on the deceased to kill him. A.1 was a student and it
is quite common that in case of an altercation, a student
would be hyper and go to the extent of uttering to kill him.
By virtue of the same, it cannot be inferred that the other
accused would go to the extent of stabbing the deceased.
Except alleging the instigation, there is no other material
to connect A.1 with the crime. It is relevant to mention
here that there is no charge of Section 302 read with 109
IPC framed as against A.1. In the absence of such charge
or without there being any appeal by the State with regard
to the said fact, this Court is of the opinion that the
offence under Section 302 read with 34 IPC would not
attract as against A.1.
25. In Krishna Murthy @ Gunodu and others v. State
of Karnataka3, the Hon'ble Apex Court held thus:
"26. Section 34 IPC makes a co-perpetrator, who had
participated in the offence, equally liable on the
principle of joint liability. For Section 34 to apply there
should be common intention between the co-
perpetrators, which means that there should be
community of purpose and common design or
2022 LiveLaw (SC) 220=(2022) 7 SCC 521
prearranged plan. However, this does not mean that
co-perpetrators should have engaged in any
discussion, agreement or valuation. For Section 34 to
apply, it is not necessary that the plan should be
prearranged or hatched for a considerable time before
the criminal act is performed. Common intention can
be formed just a minute before the actual act
happens. Common intention is necessarily a
psychological fact as it requires prior meeting of
minds. In such cases, direct evidence normally will
not be available and in most cases, whether or not
there exists a common intention has to be determined
by drawing inference from the facts proved. This
requires an inquiry into the antecedents, conduct of
the co-participants or perpetrators at the time and
after the occurrence. The manner in which the
accused arrived, mounted the attack, nature and type
of injuries inflicted, the weapon used, conduct or acts
of the co-assailants/perpetrators, object and purpose
behind the occurrence or the attack, etc. are all
relevant facts from which inference has to be drawn to
arrive at a conclusion whether or not the ingredients
of Section 34IPC are satisfied. We must remember
that Section 34IPC comes into operation against the
co-perpetrators because they have not committed the
principal or main act, which is undertaken/performed
or is attributed to the main culprit or perpetrator.
Where an accused is the main or final perpetrator,
resort to Section 34IPC is not necessary as the said
perpetrator is himself individually liable for having
caused the injury/offence. A person is liable for his
own acts. Section 34 or the principle of common
intention is invoked to implicate and fasten joint
liability on other co-participants.
28. The expression "common intention" should also
not be confused with "intention" or "mens rea" as an
essential ingredient of several offences under the IPC.
Intention may be an ingredient of an offence and this
is a personal matter. For some offences, mental
intention is not a requirement but knowledge is
sufficient and constitutes necessary mens rea. Section
34IPC can be invoked for the said offence also [refer
Afrahim Sheikh [Afrahim Sheikh v. State of W.B., AIR
1964 SC 1263]. Common intention is common design
or common intent, which is akin to motive or object. It
is the reason or purpose behind doing of all acts by
the individual participant forming the criminal act. In
some cases, intention, which is ingredient of the
offence, may be identical with the common intention
of the co-perpetrators, but this is not mandatory.
29. Section 34 IPC also uses the expression "act in
furtherance of common intention". Therefore, in each
case when Section 34 is invoked, it is necessary to
examine whether the criminal offence charged was
done in furtherance of the common intention of the
participator. If the criminal offence is distinctly remote
and unconnected with the common intention, Section
34 would not be applicable. However, if the criminal
offence done or performed was attributable or was
primarily connected or was a known or reasonably
possible outcome of the preconcert/contemporaneous
engagement or a manifestation of the mutual consent
for carrying out common purpose, it will fall within
the scope and ambit of the act done in furtherance of
common intention. Thus, the word "furtherance"
propounds a wide scope but should not be expanded
beyond the intent and purpose of the statute. Russell
on Crime, (10th Edn. p. 557), while examining the
word "furtherance" had stated that it refers to "the
action of helping forward" and "it indicates some kind
of aid or assistance producing an effect in the future"
and that "any act may be regarded as done in
furtherance of the ultimate felony if it is a step
intentionally taken for the purpose of effecting that
felony". An act which is extraneous to the common
intention or is done in opposition to it and is not
required to be done at all for carrying out the common
intention, cannot be said to be in furtherance of
common intention [refer judgment of R.P. Sethi, J. in
Suresh [Suresh v. State of U.P., (2001) 3 SCC 673 :
2001 SCC (Cri) 601] ].
30. When we apply the aforesaid principles relating to
applicability of Section 34 IPC to the facts of the
present case, we feel that Thimmappa and Gopala are
entitled to the benefit of doubt on the ground that it
cannot be with certainty held that they had common
intention viz. the injuries inflicted by Krishnamurthy
on Venkatarama after he had fallen down. They did
not participate thereafter by physically assaulting or
causing any injury to Venkatarama. They did not
facilitate and help Krishnamurthy in the assault he
perpetuated. We have no grounds to accept that they
could have preconceived the brutal assault by
Krishnamurthy who had put his knees on the neck
and jumped on the chest of the deceased to cause the
injuries resulting in his death. We cannot hold that
these two accused could have premeditated the result
which ensued when Krishnamurthy behaved and
acted in the manner he did. Clearly, they had not
joined Krishnamurthy when he had acted and have
stood by. There is nothing to indicate that their acts,
that is, holding the hands and pulling the legs of the
deceased making him fall down, were done in
furtherance of the common intention that
Krishnamurthy would thereupon put his leg on the
neck of the deceased, crush his chest and fracture the
ribs. We would, in favour of the appellants
Thimmappa and Gopala, hold that their acts cannot
be primarily connected with the violence perpetuated
by Krishnamurthy.
31. Given the acts attributed to Thimmappa and
Gopala, the assault by Krishnamurthy and the
resultant outcome were unexpected. We are also not
prepared to hold that these two accused should have
known the final outcome, or it was known to them, or
it was a reasonably possible outcome of the
preconcert/contemporaneous engagement or a
manifestation of mutual consent for carrying out a
common purpose. We, therefore, would not hold them
guilty for the offence under Section 300 or even
Section 299IPC on the ground that they shared
common intention as understood on application of
Section 34 IPC."
26. In order to bring an accused under the purview
of Section 34 IPC, it is essential that the prosecution has
to establish that if the criminal offence done or performed
was attributable or was primarily connected or was a
known or reasonably possible outcome of the preconcert/
contemporaneous engagement or a manifestation of the
mutual consent for carrying out common purpose, and
then only, it falls within the scope and ambit of the act
done in furtherance of common intention. On a careful
perusal of the evidence on record, there is absolutely no
such preconcert or premeditation on the part of the
accused to establish that they shared common intention of
causing the death of the deceased.
27. In respect of A.2 is concerned, he appears to be
a rowdy element. P.W.1, except stating in cross-
examination that a stout person by name Ashok, no
descriptive particulars have been given either in Section
161 CrPC statement or in Ex.P1. After lapse of five years,
P.W.1, who is the injured witness, identified the accused in
the Court. Since P.W.1 is injured witness who received a
blow in the hands of A.2, he would be in a position to
identify A.2 that he is the person who caused injury to him
and also stabbed the deceased to death.
28. Sri D.Kodandarami Reddy, learned counsel
appearing for A.2, submitted that there is no preconcert or
premeditation on the part of A.2 in order to do away the
deceased. A.2 had a knife in his back which he suddenly
took out it and stabbed the deceased. This Court perused
the record and comes to a conclusion that a single blow
has been dealt by A.2 on the deceased. The learned
counsel relied on a decision in Jagtar Singh v. State of
Punjab4, wherein it is held thus: (paragraphs 7 and 8).
"7. Undoubtedly, PW 2 Dr H.S. Gill opined that the
blow on the chest pierced deep inside the chest cavity
resulting in the injury to the heart and this injury was
(1983) 2 SCC 342
sufficient in the ordinary course of nature to cause
death. The question is whether in the circumstances
in which the appellant gave a blow with a knife on the
chest, he could be said to have intended to cause
death or he could be imputed the intention to cause
that particular injury which has proved fatal? The
circumstances in which the incident occurred would
clearly negative any suggestion of premeditation. It
was in a sudden quarrel to some extent provoked by
the deceased, that the appellant gave one blow with a
knife. Could it be said that para 3 of Section 300 is
attracted. We have considerable doubt about the
conclusion reached by the High Court. We cannot
confidently say that the appellant intended to cause
that particular injury which is shown to have caused
death. There was no premeditation. There was no
malice. The meeting was a chance meeting. The cause
of quarrel though trivial was just sudden and in this
background the appellant, a very young man gave one
blow. He could not be imputed with the intention to
cause death or the intention to cause that particular
injury which has proved fatal. Neither para 1 nor para
3 of Section 300 would be attracted. We are fortified in
this view by the decision of this Court in Jagrup Singh
v. State of Haryana [(1981) 3 SCC 616 : 1981 SCC
(Cri) 768 : (1981) 3 SCR 839 : 1981 Cri LJ 1136] . It
was subsequently followed in Randhir Singh v. State of
Punjab [(1981) 4 SCC 484 : 1981 SCC (Cri) 856] and
Kulwant Rai v. State of Punjab [(1981) 4 SCC 245 :
1981 SCC (Cri) 826] . Following the ratio of the
aforementioned decisions, we are of the opinion that
the appellant could not be convicted for having
committed murder of the deceased Narinder Singh.
His conviction for an offence under Section 302 IPC
and sentence of imprisonment for life are liable to be
set aside.
8. The next question is what offence the appellant is
shown to have committed? In a trivial quarrel the
appellant wielded a weapon like a knife. The incident
occurred around 1.45 noon. The quarrel was of a
trivial nature and even in such a trivial quarrel the
appellant wielded a weapon like a knife and landed a
blow in the chest. In these circumstances, it is a
permissible inference that the appellant at least could
be imputed with a knowledge that he was likely to
cause an injury which was likely to cause death.
Therefore, the appellant is shown to have committed
an offence under Section 304 Part II of the IPC and a
sentence of imprisonment for five years will meet the
ends of justice."
29. In N.Ram Kumar v. State rep. by the Inspector5,
the Hon'ble Apex Court held thus: (paragraph 20)
"Thus, it emerges from the case law analysed herein-
above for converting the sentence imposed under
Judgment of the Hon'ble Apex Court dated 06.09.1012 in Criminal Appeal No.2006 of 2023
Section 302 to Section 304 Part II the facts unravelled
during trial will have to be seen. In the facts of the
case on hand, it is discernible that there was no
premeditation to cause death or the genesis of
occurrence and the single assault by the accused and
duration of entire episode, were factors to adjudge the
intention. The offence can be brought clearly within
the ambit of Section 304 Part-II IPC. In the instant
case it can be noticed that appellant and the deceased
were in love with each other. The fact that deceased
had stopped talking to the appellant and she was
talking to her neighbour Mr. Sudhakar had ignited the
mind of the appellant to be furious about the conduct
of the deceased and he was upset about this change of
attitude of the deceased. Even according to the
testimony of PW-1, who is none other than mother of
the deceased there was altercation between the
appellant and the deceased and exchange of words
between appellant and deceased with regard to their
love affair. On being confronted by the appellant as to
why the accused had stopped talking to him and as to
why she was trying to develop friendship with
Sudhakar and the answer given by the deceased had
resulted in appellant's getting infuriated and in that
spur of the moment he caught hold of her hair and
banged her head to the wall which resulted in blood
oozing out and on seeing this he ran away from the
scene of the incident. Thus, the single assault by the
appellant coupled with the duration of the entire
period having occurred for about 2-3 minutes would
not be sufficient to infer that he had the intention to
kill the deceased. Had there been any intention to do
away with the life of the deceased, obviously the
appellant would have come prepared and would have
assaulted the deceased with pre-meditation. Yet
another factor which cannot go unnoticed, the
appellant had obviously approached the deceased and
intended to confront her as to why she was not talking
to him though they were in love and also to clear the
doubts about she being friendly with Mr. Sudhakar
(neighbour) and in this factual scenario, heated
exchange of words have taken place and enraged by
her reply the appellant has banged her head on the
wall in a fit of fury, which cannot be inferred that he
had any intention to take away her life, particularly
when he was in love with her."
30. On a perusal of the aforesaid judgment goes to
show that no premeditation to cause death or the genesis
of the occurrence and a single assault by the accused and
duration of entire episode, are the factors to adjudge the
intention. Accordingly, in both the cases, the Hon'ble
Apex Court had come to the conclusion that the offence
cannot come within the purview of the offence punishable
under Section 302 IPC and the same would come within
the purview of Section 304 Part II IPC. In similar facts and
circumstances of the case, in the present case where a
quarrel ensued between the accused and the deceased
with regard to the fact that the deceased was teasing the
accused as "Mypadu-Mypadu" and in connection with
that, an altercation had taken place between A.1 and the
deceased wherein A.1, being a student, raised cries to kill
the deceased, upon which A.2 dealt a single blow on the
stomach of the deceased, which proved to be fatal.
31. The learned A.P.P. submitted that the accused
would not come within the purview of Section 304 Part-II
IPC for the reason that the Doctor opined that injury No.1
is sufficient to cause the death by the weapon shown to
him i.e. M.O.1. Since the Doctor opined that the injury
that has been dealt by A.2 on the deceased is sufficient
enough to cause death of the deceased, it can be held that
A.2 had knowledge that the said blow would cause the
death of the deceased. Where culpable homicide falls
under any one of the four clauses of Section 300 IPC and
none of the exceptions applies, the culpable homicide is
murder and is punishable under Section 302 IPC.
Exception 4 of Section 300 IPC would be applicable if all
the four conditions laid down are satisfied viz. (1) absence
of pre-meditation; (2) there must be a sudden fight; (3) the
killing must be in the heat of passion upon a sudden
quarrel; (4) the offender should not have taken undue
advantage or acted in a cruel or unusual manner.
32. Learned senior counsel appearing for the
appellant stated that preceding the incident, a quarrel had
ensued between the accused and the deceased, and that
A.1 and the deceased were students studying in the same
college and some misunderstandings arose between them
as the deceased started commenting A.1 as 'Mypadu-
Mypadu', and A.2, who was supporting A.1, in a spur of
moment and heat of passion and without any
premeditation, dealt with a single blow on the deceased
with M.O.1, which proved to be fatal and there was no
intention on the part of A.2 to do away with the life of the
deceased and therefore, the act of the accused falls under
Exception 4 of Section 300 I.P.C.
33. Admittedly, the deceased and A.1 were studying
in the same college. Some disputes arose between them as
the deceased was teasing A.1 as 'Mypadu-Mypadu'. In
connection with that, a quarrel ensued between the
accused and the deceased, and during the said quarrel,
A.2 dealt with a single blow on left side of stomach of the
deceased with M.O.1-knife. In a fit of anger, as a quarrel
ensued preceding the incident, A.2 lost control and gave
the blow. The death is not instantaneous. Furthermore,
A.2 has not taken any undue advantage of the situation.
It is not a pre-planned attack. From the facts of the case,
it can be said that there was no intention on the part of
the appellant/accused to kill the deceased. Though
appellant/accused has no pre-meditation to cause death of
the deceased, at the same time, the accused must be
having a knowledge that his act of giving a blow with a
knife on the vital part stomach, would likely to give deadly
results and may lead to death. A man is presumed by law
to know the ordinary and natural as well as the necessary
consequences of his acts. Therefore, the act committed by
A.2 squarely falls under exception 4 of Section 300 IPC. It
is not an intentional act so as to bring the accused under
the purview of Part-I of Section 304 I.P.C. Since A.2 must
be having knowledge that his act is likely to cause death of
the deceased, he is liable to be convicted for the offence
punishable under Section 304 Part II I.P.C.
34. In view of the foregoing discussion, the
conviction and sentence recorded in the judgment dated
14.12.2016 in Sessions Case No.277 of 2013 on the file of
the I Additional Sessions Judge, Nellore against the
appellants/ A.1, A.3 and A.4 for the punishable under
Section 302 read with 34 IPC are set aside. The
appellants/A.1, A.3 and A.4 are found not guilty of the
charge under Section 302 read with 34 IPC and are
accordingly acquitted of the said charge and they are set at
liberty. Fine amounts, if any, paid by the appellants/A.1,
A.3 and A.4 shall be refunded to them.
35. Further, the conviction and sentence recorded
by the learned Sessions Judge in the impugned judgment
against the appellant/A.2 for the offence punishable under
Section 302 IPC is set aside. However, the appellant/A.2
is found guilty of the offence punishable under Section 304
Part-II IPC, accordingly, he is convicted of the said offence
and is sentenced to undergo rigorous imprisonment for a
period of seven years and to pay fine of Rs.2,000/- in
default to suffer simple imprisonment for a further period
of two months. The conviction and sentence recorded by
the learned Sessions Judge in the impugned judgment
against the appellant/A.2 for the offence punishable under
Section 324 IPC is confirmed.
36. Accordingly, the Criminal Appeal Nos. 1280 of
2016 and 1295 of 2016 are allowed. Criminal Appeal
No.1312 of 2016 is partly allowed.
As a sequel, pending miscellaneous petitions, if any,
shall stand closed.
JUSTICE K. SURESH REDDY
JUSTICE K. SREENIVASA REDDY
05.08.2024.
DRK
THE HONOURABLE SRI JUSTICE K.SURESH REDDY
AND
THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY
COMMON JUDGMENT IN
CRIMINAL APPEAL Nos.1280 OF 2016, 1295 OF 2016
& 1312 OF 2016
(Per the Hon'ble Sri Justice K.Sreenivasa Reddy)
05.08.2024
DRK
