Santhosh Mallik, R.R.Dt., vs State Of Telangana, Rep Pp.,
2022 Latest Caselaw 6419 Tel

        THE HON'BLE Smt. JUSTICE P.SREE SUDHA
                         AND
         THE HON'BLE Dr. JUSTICE D.NAGARJUN

             CRIMINAL APPEAL No.836 OF 2014

                           JUDGMENT

(Per Hon'ble Smt. Justice P.Sree Sudha)

1. By judgment dated 19.06.2014 passed in Sessions Case

No.136 of 2014, the learned Principal Sessions Judge at

Mahabubnagar, held that the accused is found guilty for the

offence under Section 302 IPC and accordingly he is convicted

and sentenced to undergo rigorous imprisonment for a period of

life and to pay fine of Rs.500/-, in default to suffer S.I. for one

month. It was also further observed by the trial Court that the

period of imprisonment already undergone by the accused as

under trial prisoner from 01.11.2013 to that date is to be set off

under Section 428 Cr.P.C. Aggrieved by the conviction and

sentence imposed, the accused is in appeal under Section

374(2) Cr.P.C.

2. The charge framed against the accused read thus:

'That you on or about 28.10.2013 at about 0630 hours, at Sreenivasa Spinning Mill in the limits of Addakal, did commit murder by intentionally causing the death of Bapin Mallik by stabbing him with a knife and thereby committed an offence punishable U/Sec. 302 of I.P.C. and within my cognizance;

3. The accused however pleaded not guilty and claimed to be

tried.

4. During the trial, the prosecution examined P.Ws.1 to 10

and marked in evidence Exs.P1 to P8 and M.Os.1 to 5. The

defence did not adduce any oral or documentary evidence. Upon

consideration of the oral and documentary evidence advanced

by both the counsel, the Sessions Court convicted the accused

as aforestated.

5. The case of the prosecution, as per the charge-sheet, is

that the General Manager of Srinivasa Spinning Mill gave

complaint at Police Station, Addakal, on 28.10.2013 at about

7.05 hours stating that one Santosh Mallik-accused and Bipin

Mallik-deceased are working in their spinning mill and residing

in the quarters and that one Dinish Kumar Jinha informed to

the complainant that Santosh Mallik stabbed Bipin Mallik with

a knife on his chest and upon which the complainant instructed

him to shift the injured to hospital and then he reached to the

company by that time injured was shifted to hospital. The

complainant would also state that when he enquired the

incident with one Mamatha Acharaya, W/o. Pratap Acharya, she

stated that on 27.10.2013 at about 1100 hours there was a

quarrel between Santosh Mallik and Bipin Mallik. Bipin Mallik

beat Santosh Mallik with a eelapeeta (chekka peeta used for

cutting vegetables) on his head and as a result of which Santosh

Mallik sustained bleeding injury and as such Santosh Mallik

attacked and stabbed Bipin Mallik on 28.10.2013 at 6.30 am

while he was returning from canteen to his room with a knife,

as a result Bipin Mallik died while he was shifting to the

hospital and as such the complainant requested the authorities

to initiate action against Santosh Mallik who killed Bipin Mallik.

The said complaint was received at 1130 hours by Police,

Addakal, and later it was registered as case in Crime No.174 of

2013 under Section 302 IPC. After completion of investigation,

the accused was arrested in the Spinning Mill in his Quarter

No.6 at about 4.25 PM. After the entire investigation is

completed, charge-sheet is filed against the accused for the

offence under Section 302 IPC.

6. The trial Court considering the evidence on record and

also the arguments advanced by both the counsel, observed

that on the previous day there was a quarrel between the

accused and the deceased and it is the motive for committing

the offence and on the next day the accused attacked the

deceased with a knife and stabbed on his chest and committed

an act with an intention to cause death and the bodily injuries

caused by him is sufficient in the ordinary course of nature to

cause death and in fact the accused knows that the injury

caused by him is likely to cause death and as such it clearly

falls within the ambit of Section 302 IPC. The eye witnesses-

P.Ws.2, 3 and 7 clearly deposed with regard to the injury caused

by the accused to the deceased and their evidence amply

establishes that the accused is having intention to take revenge

against the deceased. The Doctor who conducted post-mortem

also stated that the injury caused on the left side of the chest

and it went up to left atrium of the heart and the said injury is

sufficient to cause death of the deceased. The trial Court further

observed that when accused sustained injuries in the hands of

the deceased on 27.10.2013, he was treated by a private

medical Doctor and was in the hospital for two days, but the

said private Doctor was not examined and no medical record

was filed and thus the plea of alibi is not proved and accordingly

convicted the accused under Section 302 IPC and it is not a

rarest of rare case to impose grave penalty of death and

accordingly convicted him with life imprisonment and also a fine

of Rs.500/- in default to suffer S.I. for one month. As there are

no dependants to the deceased, compensation was not granted

under Section 357 IPC. Aggrieved by the said judgment, the

appellant-accused preferred this appeal.

7. Learned counsel for the appellant would contend that the

prosecution failed to connect the accused with the offence by

way of acceptable evidence and it did not investigate the case

properly. Learned counsel would further argue that the

Investigating Officer-P.W.10 examined the persons who are

working in the mill and no independent witnesses were

examined and that the Investigating Officer has not examined

even the private doctor who treated the accused for head injury

and found out how many days accused was treated in the

hospital. Learned counsel would also assert that as per the

evidence of P.W.7 the accused was treated for two days and as

such there is no possibility for the accused to kill the deceased

on the date of the incident. Learned counsel would also argue

that P.Ws.2, 3 and 7 are having enmity to depose falsely

against the accused and P.W.8 is the Doctor has not ruled out

the possibility of injury if the deceased falls accidentally on the

knife having sharp edge and that there are several

contradictions in the evidence of prosecution witnesses and the

prosecution failed to prove the case beyond reasonable doubt

and as such requested the Court to set aside the conviction

imposed upon the accused.

8. Heard the learned counsel appearing for the appellant-

accused and the learned Public Prosecutor representing the

State.

9. P.W.1 is the complainant who came to know about the

quarrel between accused and deceased through Dinesh Kumar

Jinha who was also working in their Spinning Mill and he

instructed him to shift the deceased to the hospital for

treatment and thereupon he rushed to the quarters and when

he enquired one Mamatha Acharya she told him that on

27.10.2013 at about 11.00 am there was a quarrel between

deceased and accused in respect of cutting of vegetables and at

that time the deceased Bipin Mallik beat on the head of the

accused with eelapeeta (instrument used to cut vegetables) as a

result of which the accused sustained injury on his head and he

got bandaged the wound at hospital situated at Addakal and

that by keeping the same in mind the accused stabbed the

deceased on the way from canteen to his room on 28.10.2013 at

6.30 am and later he came to know that Bipin Mallik died on

the way to hospital. On the same day P.W.1 gave complaint

under Ex.P1 at 11.30 am. He stated that Dinesh Kumar Jinha

is not working in their factory from the past two months and he

do not know his whereabouts. P.W.1 also deposed that both the

deceased and accused are natives of Orissa State and that the

Company provided quarters to the labour who are from outside

the State and that accused and deceased are residing in

Quarter No.6 at the time of incident. Pratap Acharya, his wife

Mamatha Acharya, Dinesh Kumar Jinha were also working and

residing in the quarters provided by the factory. Mente

Thirumalesh is the security guard of their spinning mill. When

it was suggested to P.W.1 that accused was in hospital for two

days, P.W.1 denied the same. It was also suggested to him that

the deceased on his own fell down on eelapeeta while cutting

vegetables and sustained injuries and died, but he denied it.

10. The prosecution examined Pratap Acharya as P.W.2 and

his wife Mamatha Acharya was not examined by the prosecution

and her evidence was given up. The prosecution also examined

one Dinesh Kumar Jinha as P.W.7. P.W.2 in his evidence

deposed that Mamatha Acharya is his wife. He deposed that he

along with his wife are working in the Srinivasa Spinning Mills,

Addakal, and are residing in Quarter No.2 provided by the

company. He knows accused and deceased as they are working

in the mill and residing in Quarter No.6. On 27.10.2013 a

quarrel took place between the accused and the deceased with

regard to cooking food and at that time deceased beat and

caused injury on the head of the accused with eelapeeta (cutting

instrument). He took the accused to hospital for treatment

where a private doctor at Addakal treated the accused and

immediately after the treatment they returned to their quarters

and kept the accused in his room by providing food and tablets

to prevent further quarrels between the deceased and the

accused and accordingly the accused slept in their quarters.

Next day while P.W.2 was preparing to go to his duty, the

deceased was returning from canteen towards his quarters and

then the accused picked up a knife from his quarters and

stabbed the deceased on the chest with the knife. He along with

P.W.7 and others shifted the deceased to the hospital in an auto

and on the way Ambulance came in opposite side and then they

all shifted the deceased into Ambulance, but the staff of the

Ambulance declared him as dead. Immediately P.W.2 and others

shifted the injured to Government Hospital, Mahabubnagar.

This witness deposed that the incident of stabbing was

witnessed by his wife also. It was suggested to him that MO.1

knife is available in the market and it was also suggested that

accused was admitted for two days in the hospital for the head

injury, but the witness denied it.

11. P.W.7 deposed that he along with P.W.2 and his wife and

P.W.3 witnessed the incident. When deceased died he informed

the same to P.W.1 and he gave report. He also deposed that

accused was brought back from hospital and kept him in the

house of P.W.2 to prevent further quarrel between him and the

deceased. During the cross-examination, the witness deposed

that there are 36 quarters for the workers and staff of the Mill

and that the room of accused and the deceased was opposite to

his room and they both are working in shifts but he cannot say

who was working in day time and who was working in night

time. He also deposed that he along with P.W.2 and his wife

took accused to hospital when he was beaten on the head by

the deceased. The witness further deposed that accused was in

the hospital for two days. He also stated that the signature in

161 Cr.P.C. statement is not his signature. It was suggested to

the witness that deceased fell down on the instrument which is

using for cutting vegetables and sustained injury and died, but

he denied it.

12. P.W.3-Security Guard of the Mill deposed that on

28.10.2013 at 6.30 a.m. he went to canteen to have tea and

while returning to main gate he found some quarrel in front of

the quarters of the workers and he went there and found

accused stabbed the deceased on his chest with a knife, due to

which deceased fell down with bleeding injury. Then P.W.2, his

wife and P.W.7 shifted the deceased to the hospital and at 8.30

am he came to know that deceased died on the way to the

hospital. On enquiry, he came to know about the quarrel

between accused and deceased on the previous day. During the

cross-examination, the witness stated that on the date of the

incident he was not on duty as his shift was not started. He

deposed that a room was provided to him along with another

security guard in the factory premises and hence he was in the

Spinning Mills at the time of the incident. He do not know about

the previous day incident as he was on duty in the factory. It

was also suggested to him that accused was inpatient in the

hospital for two days and he was not in the factory on the date

of the incident, but he denied it.

13. P.W.4 is the Driver worked in the Spinning Mill. He

deposed that when he came to know about the quarrel between

accused and deceased, he went to the Government Hospital and

at the instance of Police he acted as a panch witness and Ex.P2

inquest panchanama conducted at the time of inquest. He

further deposed that he cannot read and write Telugu and he

signed on the written panchanama and he do not know the

contents of Ex.P2.

14. P.W.5 is another Security Guard. He deposed that on

31.10.2013 Police called him and one Uppala Govardhana

Chary and they found the accused in the custody of the police.

The police searched the room of the accused and found knife

having blood stains. M.O.1 knife was seized in their presence

under confession-cum-seizure panchanama and he signed on

Ex.P3. The admissible portion in the panchanama is marked as

Ex.P4. In the cross-examination he stated that panchanama

was written in the room of the accused. When it was suggested

that it was written in the Police Station, he denied it.

15. P.W.6 was running canteen in the Spinning Mills. On

28.10.2013 the Police called him and Chenglaya Laxminarayana

to the workers quarters and they acted as a panch witnesses for

crime details form and rough sketch under Ex.P5 and also

M.Os.2 and 3 were seized under Ex.P5 panchanama. During the

cross-examination, he deposed that only he affixed one

signature.

16. P.W.8 is the Doctor who conducted post-mortem on

28.10.2013 from 4.00 to 5.00 pm. He found a penetrating

wound present on the left side of the chest in the V-inter costal

space in between left side nipple and sternum, measuring 1 x ½

cms x thoracic deep. Wound is penetrating inter costal muscles

of the left side and entered up to left atrium of the heart.

Thoracic cavity is filled with blood stains and fluid and opined

that the cause of death is hypovolemic shock due to penetrating

wound in the heart. The time of death is 8 to 10 hours prior to

post-mortem. He deposed that the injury is possible with M.O.1

knife which is shown to him and Ex.P6 is the post-mortem

examination report issued by him. During the cross-

examination, he deposed that M.O.1 is having one side sharp

and also stated that the injury is possible if a person

accidentally falls on a knife or sharp object.

17. P.W.9 is the Assistant Sub-Inspector of Police, who

received complaint from P.W.1 at 11.30 a.m. and registered a

case in Crime No.174 of 2013 and issued FIR under Ex.P7.

18. P.W.10 is the Inspector of Police who examined the

witnesses, conducted scene of offence panchanama, prepared

crime detail form and rough sketch and also examined the

Photographer, seized M.Os.4 and 5 under Ex.P2 and also gave

requisition for post-mortem examination. He sent MOs to the

FSL on 31.10.2013 at 5.00 pm and arrested the accused in his

quarter and recorded his confessional panchanama and also

recovered MO.1 at his instance under Ex.P4. Received FSL

report under Ex.P5 and filed charge sheet. It was suggested to

him that accused was in the hospital for two days, deceased fell

down on the knife while cutting vegetables and sustained

injuries, that accused was in hospital for three days and as

such he was arrested on 31.10.2013 and that he planted MO.1

and intentionally not examined the independent witnesses, but

he denied all the suggestions.

19. Admittedly, it is for the prosecution to establish the guilt

of the accused beyond reasonable doubt in a grave offence of

murder. In this case P.W.1 is the complainant and not an eye

witness to the occurrence. Prosecution examined P.Ws.2, 3 and

7 as an eye witnesses. P.W.2 has not stated anywhere that he

witnessed the incident, but at the end of the deposition he

deposed that incident of stabbing was witnessed by his wife

also. He stated that while he was preparing to go to the duty,

deceased was returning from the canteen towards his quarters

and at that time accused stabbed him. He has not stated

regarding his presence at the scene of offence, though the other

witnesses stated about his presence. P.W.3 deposed that while

he was returning from the canteen he found some quarrel in

front of the quarters of the workers and he went there and

found accused stabbed the deceased and due to which the

deceased fell down with bleeding injury and as such this

witness has not seen the accused stabbing the deceased with

the knife and he do not know about the previous day quarrel

between accused and deceased. Though he was in the premises

on the date of offence, he is not an eye witness to the incident. It

at all he is an eye witness to the incident, being Security Guard

of factory premises why he has not produced accused before the

Police Station immediately after the incident is not explained

anywhere. P.W.1 stated that wife of P.W.2 informed him about

the quarrel and it seems that she is an eye witness, but for the

reasons best known to the prosecution, her evidence was given

up and she was not examined before the Court. P.W.7 informed

about the incident to P.W.1 immediately after the incident over

phone, he shifted the deceased to the hospital along with P.W.2

and his wife, but in the cross-examination he denied his

signature on the 161 Cr.P.C. statement.

20. Now it is for this Court to scrutinize the evidence adduced

by the witnesses for arriving to the conclusion whether the

judgment of the trial Court is correct or not.

21. Though P.W.7 stated that he witnessed the incident, he

denied the signature on 161 Cr.P.C. statement. He also deposed

that he along with P.W.2, L.W.3 and P.W.3 witnessed the

incident, but in the evidence of P.Ws.2 and 3 there is no specific

mention that they witnessed the actual incident along with

P.W.7 and as per the evidence of P.W.1, P.W.2 informed him

about the incident in detail when he went to the quarters

immediately after the incident, but she was not examined by the

prosecution for the reasons best known to them. As the

evidence of P.W.7 is not corroborated by the evidence of other

witnesses who are cited as eye witnesses, it is for this Court to

see whether to rely upon the sole testimony of P.W.7 for

conviction. P.W.7 in the chief-examination deposed that the

accused was brought back and kept in the room of P.W.2, in the

cross-examination stated that he was in the hospital for two

days. The defence of accused is that he was in the hospital for

two days and as such he did not kill the deceased on 28.102013

and thus the material contradiction in his evidence goes to the

root of the case, and thus it is not safe to rely upon his sole

testimony to base conviction. P.W.8 is the Doctor who deposed

about the cause of death under Ex.P6, but he has not ruled out

the possibility of causing injury due to the accidental fall.

22. The defence of the accused is that he was in the hospital

for two days due to the injuries sustained by him on the

previous day in the hands of the deceased and as such there is

no occasion for him to quarrel and stab the deceased. The said

suggestion was given to all the material witnesses, but all of

them denied his presence for two days in the hospital except

P.W.7. The prosecution has not examined the Doctor who

treated the accused on 27.10.2013. The motive for the offence is

that on 27.10.2013 there was a quarrel between accused and

deceased at the time of cutting of vegetables and the deceased

stabbed the accused with eelapeta and as a result of which he

sustained head injury and treated in the hospital, due to the

above quarrel in mind, the accused on the next day stabbed the

deceased to death. Even the trial Court observed that there is

an intention on the part of the accused to kill the deceased and

thus the prosecution proved the motive for the offence.

23. No doubt, accused caused injury with knife on the chest

of the deceased and as per the evidence of P.W.8 it entered up to

left atrium of the heart. P.W.2 also stated that after the

treatment they kept the accused in his room during the entire

night time and on the next day he picked up knife from his

quarters and stabbed the deceased while he was returning from

canteen towards his quarters. The prosecution examined P.W.5-

another Security Guard for recovery of knife. He deposed that it

was recovered from the room of the accused. The accused

concealed the knife in his room and brought out the same and

produced before them under Ex.P4. Admittedly, incident took

place on 28.10.2013 and the accused was arrested on

31.10.2013 i.e. after three days in his room and the knife was

also recovered from his room with blood stains. In such a

situation the natural human conduct of the culprit is either he

might have fled away from the scene of offence or he might have

thrown away the weapon used in committing the offence

somewhere else instead of keeping it in the room. It was

suggested by the accused that MO.1 knife is planted by the

police and the knife like MO.1 are easily available in the market.

Though P.W.5 deposed that the blood stained knife was

recovered and it was sent to FSL, the FSL report is not filed by

the prosecution. P.W.5 also deposed that the report was written

in the room of the accused.

24. Learned counsel for the appellant would strenuously

contend that the prosecution miserably failed to examine the

independent witnesses, as the incident had occurred within the

factory premises that too in the quarters, it cannot be said that

non-examination of the independent witness is fatal to the case

of the prosecution.

25. Admittedly, accused and deceased are co-workers working

in the Spinning Mill and they both hails from Orissa State and

are residing in the same quarters opposite to the quarter of

P.W.2. There was no previous enmity between them and

unfortunately a small quarrel took place between them with

regard to cutting of vegetables while cooking food on

27.10.2013. The motive attributed by the prosecution for killing

of the deceased by the accused on the next day is not so grave

and moreover, among the eye witnesses examined by the

prosecution, except P.W.7, the other eye witnesses have not

stated before the Court that they witnessed the actual incident.

The evidence of P.W.7 is not corroborated on material

particulars with the evidence of other eye witnesses. The seizure

of MO.1 in the room of accused three days after the incident

strengthens the argument of the defence that it is available in

the market easily and there is chance of planting it by the

police. P.W.3-Security Guard has not taken custody of accused

when he came to know about the death of the deceased by 8.30

am. Even P.W.8 stated that the injuries sustained by the

deceased can be caused by accidental fall on a sharp edged

weapon and as such it is for the prosecution to establish that

the accused alone caused the death of the deceased and there is

no person. The prosecution has not examined the private doctor

to rule out the defence of the accused. The prosecution mainly

contended that the accused was in hospital for two days, but it

was suggested to the Inspector that the accused was in the

hospital for three day and as such he arrested accused only on

31.10.2013. Further, the allegation of the prosecution is that

the accused had an intention to kill the deceased and caused

such bodily injury, which in the ordinary course of nature

sufficient to cause death. But P.W.2 deposed that the accused

has taken a knife from their house and stabbed the deceased

while he was proceeding from canteen to his quarters. It cannot

be said that there was premeditated plan to kill the deceased

and there was no previous criminal history to the accused

earlier and in fact, the injury was inflicted on the deceased at

6.30 am and while shifting him to the hospital, he died on the

way at 8.30 am. Complaint was given at 11.30 a.m. on the same

day, but the accused was arrested on 31.10.2013 i.e. after three

days from his quarters in the spinning mill.

26. P.Ws.2 and 3 are not eye witnesses, P.W.7 evidence is not

reliable, recovery of weapon is doubtful, arrest after three days

from the room of accused is not believable, and thus this Court

finds that the prosecution failed to prove the guilt of the

accused beyond reasonable doubt, and therefore, it is just and

reasonable to set aside the judgment of the trial Court.

27. In the result, the appeal is allowed and the judgment in

S.C. No.136 of 2014 dated 19.06.2014 on the file of the learned

Principal Sessions Judge at Mahabubnagar, is set aside. The

appellant-accused is acquitted under Section 232 Cr.P.C. for an

offence under Section 302 IPC. He shall be set at liberty

forthwith, if not required in any other case. Fine amount paid by

him shall also be refunded.

___________________ P.SREE SUDHA, J

____________________ Dr. D.NAGARJUN, J

5th DECEMBER, 2022 Pgs

Note: Issue operative portion by wire.

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