Hun Singh Michael vs State Of Ap., Rep Byi Ts P.P
2022 Latest Caselaw 4693 Tel

        THE HONOURABLE DR. JUSTICE G. RADHA RANI

                                 AND

     THE HONOURABLE SRI JUSTICE SAMBASIVARAO NAIDU


                   Criminal Appeal No.970 of 2013


JUDGMENT : (per Hon'ble Dr. Justice G. Radha Rani)


       This Criminal Appeal is preferred by the appellant / accused

against the judgment dated 04.11.2013 passed in Sessions Case No.624 of

2010 on the file of the III Additional Metropolitan Sessions Judge, at

Hyderabad, convicting the accused under Section 235(2) of Criminal

Procedure Code, 1973 for the offence under Section 302 of I.P.C. and

sentencing the appellant / accused to undergo life imprisonment and also

to pay a fine of Rs.1,000/-, in default of payment of fine, to undergo

Simple Imprisonment for three (03) months.


2.     The case of the prosecution, as per the charge-sheet filed by the

Inspector of Police, P.S. Saidabad, was that on 25.02.2010 at about 04:30

P.M., the Inspector of Police received a telephonic message from

P.C.3259 of P.S. Saidabad stating that a suspicious death occurred at

Singareni Colony huts upon which the Inspector of Police made a

General Diary entry and proceeded to the scene and recorded the
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statement of the brother of the deceased, and sent it to the Police Station

with an endorsement to the Station House Officer to register a case under

Section 302 of I.P.C., and sent back the case file to him for further

investigation.


3.    As per the statement of the complainant (brother of the deceased),

his brother was an auto-driver and hired an auto from one Hun Singh @

Michael; his brother went along with the auto and had not returned for

eight days; on 24.02.2010 at about 08:00 P.M. when his brother returned

to his hut, the owner of the auto, viz., Hun Singh @ Michael came there,

picked up quarrel with his brother and beat him black and blue, due to

which his brother could not take dinner in the night; on the next day

morning also, Hun Singh @ Michael repeated the same by fisting his

brother, viz., Pathlavth Soumya Naik @ Soumya, and also kicked him on

his stomach due to which his brother died.


4.    The complainant further stated that at the time of the incident, he

was at Devarakonda to attend his sister's operation, and came to know

about the same through his brother-in-law, viz., Swami, and returned to

the Singareni Colony huts along with his relatives whereby he noticed his

brother's dead body lying in front of his hut; and on observation he

noticed a number of injuries on his forehead, nose, both cheeks, knees,
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back, stomach and swollen injuries all over the body; upon enquiry with

his daughter, she stated about Hun Singh @ Michael beating Sowmya

Naik on 24.02.2010 and on 25.02.2010. Basing on the statement, the

H.C.No.5116 of P.S. Saidabad, Hyderabad registered a case in Crime

No.56 of 2010 under Section 302 of I.P.C. and sent the case file to the

Inspector of Police for further investigation. The Inspector of Police

secured the mediators and conducted scene of offence-cum-seizure

panchnama, and seized a pestle from the scene of offence; he also took

the photographs of the dead body and the scene of offence, and sent the

body to the mortuary room at Osmania General Hospital. The Inspector

of Police secured the presence of the other witnesses and recorded their

statements, visited the mortuary on 26.02.2010 at Osmania General

Hospital and conducted inquest panchnama over the body of the deceased

in the presence of the mediators and sent the body for Post-Mortem

Examination. After Post-Mortem Examination, he handed over the body

of the deceased to the blood relatives for performing last rites.      On

credible information, he apprehended the accused, viz., Hun Singh @

Michael on 01.03.2010 at 10:00 P.M. On interrogation, the accused

confessed the crime. The Inspector of Police arrested the said Hun Singh

@ Michael, and produced him before the Court for judicial custody on
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02.03.2010, and after collecting the Forensic Science Laboratory and

Post-Mortem Examination reports which would disclose that the cause of

death of the deceased was due to head injury associated with blunt injury

abdomen, filed charge-sheet against the accused under Section 302 of

Indian Penal Code, 1860 (for short, 'the I.P.C.').


5.    The case was taken cognizance by the VII Additional Chief

Metropolitan Magistrate, Hyderabad for the offence under Section 302 of

I.P.C., and after furnishing the copies of documents to the accused,

committed the matter to the Metropolitan Sessions Judge, Hyderabad.

The case was assigned to the III Additional Metropolitan Sessions Judge,

Hyderabad. The III Additional Metropolitan Sessions Judge, Hyderabad

framed charge under Section 302 of I.P.C. The accused pleaded not

guilty.


6.    During the course of trial, the prosecution examined PWs.1 to 11,

and got marked Exs.P.1 to P.7 and MO.1. No defense evidence was

adduced by the accused.


7.    On considering the oral and documentary evidence on record, the

Trial Court found the accused guilty for the offence under Section 302 of

I.P.C., and sentenced him to undergo imprisonment for life and to pay a
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fine amount of Rs.1,000/-; in default of payment of fine amount, to

undergo simple imprisonment for three (03) months.


8.    Aggrieved by the said conviction and sentence inflicted by the

Trial Court, the appellant / accused preferred the present Criminal Appeal

contending that the trial Court erred in relying upon the highly interested

and discrepant testimonies of PWs.1 and 5; the trial Court failed to see

that PWs.2 and 3 were not eye-witnesses to the incident, and their

evidence would only show that they witnessed the galata between the

accused and the deceased only on the previous day of the incident; the

evidence of PW.5 would show that the accused beat the deceased with

hands; the medical evidence did not fit into the prosecution case; in any

event, the offence would not fall under Section 302 of I.P.C. as

admittedly the accused was unarmed and had no intention to cause the

death of the deceased; the weapon, i.e., pestle, was also not recovered at

the instance of the accused, but was seized from the scene of offence

which would indicate that it was planted; and prayed this Court to allow

the appeal.


9.    Heard the learned counsel for the appellant and the learned Public

Prosecutor for the respondent.

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10. Learned counsel for the appellant contended that there was an

abnormal delay in giving report to the Police, while the incident was

alleged to have taken place on 24.02.2010 at about 08:00 P.M., the report

was given at 06:00 P.M. on 25.02.2010; therefore, there was a delay of

twenty-two (22) hours in giving the report; no explanation was given by

the prosecution for the said delay; as per the prosecution case, PWs.2 and

3 were the eye-witnesses to the incident; PW.2 was the daughter of

brother of the deceased; PW.3 was a neighbour and also related to the

deceased; though the incident took place on 24.02.2010 at about 08:00

P.M., the eye-witnesses PWs.2 and 3 kept quiet and did not give any

report to the Police nor informed anybody, particularly to the family

members of the deceased; the conduct of PWs.2 and 3 was abnormal and

unnatural in not giving report in the Police Station, and also in not taking

the deceased to the hospital and not informing anybody; the incident

occurred in a locality where many people would gather, but as no one had

even taken the deceased to the hospital, there was any amount of doubt

with regard to the genesis of the incident; there was also a police out-post

in the colony and there was regular picketing in the colony round the

clock; PWs.2 and 3 or the persons gathered there, ought to have informed

the incident to the police; in the absence of giving information to the ::7:: Dr.GRR,J & SSRN,J crla_970_2013

police, it could be inferred that the incident had not taken place in the

manner as stated by PWs.2 and 3; there were material contradictions in

the evidence of witnesses with regard to use of pestle and beating the

deceased on the following day.

11. Learned counsel for the appellant further contended that PWs.2 and

3 did not state in their 161 statements that the accused beat the deceased

on the following day; PW.1 had not stated about using of the pestle; the

use of pestle was also not found in Ex.P.1-Report; PW.3 did not state in

his 161 Statement that the accused beat the deceased with pestle;

therefore, due to these omissions, the evidence of PWs.2 and 3 was not

trustworthy to sustain a conviction; even assuming that the said evidence

was acceptable, the incident took place in a spur of moment on a trivial

issue and there was a galata preceding the incident; there was no inimical

relations between the accused and the deceased to believe that the

accused had an intention to kill the deceased; the conviction under

Section 302 of I.P.C. would not sustain and the offence might fall under

Section 304 Part-II of I.P.C.; and prayed this Court to allow the Criminal

Appeal by setting aside the conviction and sentence passed against the

appellant.

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12. On the other hand, the learned Public Prosecutor appearing on

behalf of the respondent, supported the judgment of the trial Court and

stated that the evidence of the witnesses was cogent and consistent; the

accused beating the deceased on the next day also would prove his

criminal intention to cause the death of the deceased; and prayed this

Court to uphold the conviction and sentence of the accused as passed by

the trial Court under Section 302 of I.P.C.

13. The charge that was framed against the accused reads as under :

CHARGE

It is alleged that you own an auto-rickshaw and hired it to Pathalazvath Soumya Naik and that on 24.02.2010 at 08:00 P.M. at his house in Manyavaripalli Huts, Singareni Colony Huts, Saidabad, Hyderabad you quarreled with him and fisted him and kicked him all over the body and with a pestle / pounder caused injuries on his head and thereafter on 25.02.2010 at 02:00 P.M. at the same place you again caught him and knowing that he is under severe injuries you again hit him on his stomach and all over the body and that resulted in his spot death and that you did all this with a view to kill him and thus you committed murder punishable under Section 302 I.P.C. and within my cognizance.

14. PW.1 is the complainant and brother of the deceased. His evidence

is hearsay, as he stated that he was out-of-station at the time of the

incident. He stated that he along with his wife, went to Devarakonda to

attend the surgery of his elder sister. When he telephoned to his brother-

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in-law, viz., Swami, the latter told him that the accused beat his deceased

brother at about 08:00 P.M. at the hut of the deceased. On 25.02.2010, at

about 02:00 P.M., one Shankar told him that the accused killed his

brother. On the same day, at about 06:00 P.M., he came to the house of

the deceased and found the dead body of the deceased, noticed injuries all

over the body of the deceased, inquired with his daughter (Kum. Chitti)

as to what happened, and she narrated him about the entire incident and

later he gave complaint to the Police, Saidabad. The said complaint was

marked as Ex.P.1.

15. PWs.2 and 3 were shown as eye-witnesses to the incident. PW.2

was Kum. Chitti (daughter of PW.1). She was aged around 12 years at

the time of the incident. Her evidence was recorded on 23.08.2013 and

she was shown as aged 15 years by that time. She stated that on

24.02.2010, at about 08:00 P.M., her uncle by name Sowmya came to the

house; his house was situated by the side of their house in Singareni

Colony; at that time, the accused came to the house of the deceased; the

deceased took the auto of the accused for rent and he was due some

amount towards rent to the accused; some galata took place between

them with regard to payment of auto rent to the accused; then the accused

beat the deceased with hands, and later he beat with a pestle on his ::10:: Dr.GRR,J & SSRN,J crla_970_2013

stomach, head and ankles, and again the accused beat the deceased on his

cheek with his chappal; blood oozed from the ears of the deceased; then

the deceased fell down; immediately after beating the deceased, the

accused left the place. On the next day morning, their neighbour by name

Smt. Vuri gave some "ganji" to the deceased, but the deceased could not

drink it and vomited; on the next day, i.e., on 25.02.2010, again the

accused came to the deceased at about 08:00 A.M. abused him in filthy

language and beat the deceased again with a pestle and demanded the

accused for the auto rent; the accused also beat the deceased on the cheek

of the deceased with chappal; and on the same day at about 02:00 P.M.,

they found the deceased dead. PW.2 further stated that LWs.3 and 4

witnessed the incident.

16. In the cross-examination, PW.2 denied that she had not stated to

the police about the accused beating the deceased with pestle and also

beating him on the cheek with chappal and that blood oozed from the ears

of the deceased, and also about Smt. Vuri giving "Ganji" to the deceased,

and that he could not drink it and vomited; and she also denied that she

had not stated to the police that on the next day, the accused again beat

the deceased with pestle and also beat him on his cheek with chappal.

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17. PW.3, the other eye-witness to the incident, stated that his house

was adjacent to the house of PWs.1 and 2; the house of the deceased was

also situated by the side of their houses in Singareni Colony, Saidabad,

Hyderabad; the accused was an auto-driver; the deceased was running the

auto of the accused by taking it on rent; the deceased became due of one

week auto rental to the accused; on 24.02.2010, at about 07:00 P.M.

while he was at his house, the accused came to the house of the deceased,

questioned him for non-payment of auto rent and beat him with hands and

legs, then the accused also beat the deceased with pestle on his head, legs

and other parts of the body and went away; the neighbours witnessed the

incident; PW.2 and LW.4 (Islavath Ramesh) also witnessed the incident.

He stated that on the next day morning, the accused came to the deceased

and beat him again; later he came to know about the death of the

deceased at about 02:00 P.M. on 25.02.2010.

18. In the cross-examination, PW.3 stated that the deceased was related

to him as his co-brother by courtesy and stated that he had not lodged any

complaint to the police; he denied the suggestion that he had not stated to

the police that the accused beat the deceased with a pestle. He also

admitted that the P.S. Saidabad was at a distance of 2 kms. from their

huts.

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19. Thus, both the above witnesses stated about the accused beating the

deceased on 24.02.2010 even as well as on 25.02.2010 in the morning

hours. Both these witnesses stated about the accused questioning the

deceased for auto rentals as he was due one week auto rents, and beat him

not only with hands but also with a pestle on his head, legs, stomach and

other parts of the body.

20. While PW.2 stated that the accused, on the next day morning, also

beat the deceased with a pestle in the stomach, PW.3 had not stated about

using a pestle on the next day; and he only stated that the accused came to

the house of the deceased and beat him again.

21. The wife of the deceased was examined as PW.4. She stated that

she was not present on the date of the incident. She went to her parents'

house at Mannevaripalli, Devarakonda. PW.1 telephoned to her and

informed about the death of her husband. She immediately rushed to the

Singareni Colony and found the dead body of her deceased-husband with

injuries all over the body and she came to know from PWs.2 and 3 that

the accused beat her husband due to which he died.

22. PW.5 was shown as a circumstantial witness, who spoke about the

incident. He stated that on 24.02.2010, between 08.00 P.M. and 09:00 ::13:: Dr.GRR,J & SSRN,J crla_970_2013

P.M., he saw the deceased Sowmya lying on the cot; he gave him

drinking water, but he could not drink it and vomited it. On enquiry with

his wife, she told him that the accused beat the deceased. He stated that

on the next day morning again the accused came and beat the deceased

with his hands, and at about 02:00 P.M. Sowmya died.

23. Thus, though this witness stated that he had not witnessed the

incident on 24.02.2010 in the evening hours and came to know about the

same through his wife, but stated that he witnessed the incident on

25.02.2010 in the morning hours and stated about the accused beating the

deceased with his hands.

24. PW.6 was the panch witness for the scene of offence - cum -

seizure panchnama. He stated that on 25.02.2010, at about 06:30 P.M.,

police called him to the scene of offence; the police prepared the scene of

offence - cum - seizure panchnama and seized the pestle from the scene

of offence in their presence. The pestle was marked as MO.1. The scene

of observation panchnama was marked as Ex.P.2 and the rough sketch

was marked as Ex.P.3. He stated that he along with other witness, viz.,

Anjaiah, signed on Exs.P.2 and P.3. Nothing was elicited in his cross-

examination to disbelieve his evidence.

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25. PW.7 was the Doctor who conducted Post-Mortem Examination on

the body of the deceased. She stated that on 26.02.2010, at 12:20 P.M.,

she received requisition to conduct Post-Mortem Examination over the

body of the deceased, Pathlavath Soumya Naik @ Sowmya, aged 29

years; and noted the injuries in the Post-Mortem report. She also stated

that as per her opinion, the cause of death of the deceased, to the best of

her knowledge and belief, was head injury associated with blunt injury

abdomen. She sent the viscera to the Forensic Science Laboratory; and

on receipt of the Forensic Science Laboratory report, issued the Post-

Mortem Report which was marked as Ex.P.4. In her cross-examination,

she stated that injury Nos.9 to 14 mentioned in Ex.P.4, were responsible

for causing death of the deceased.

26. As seen from Ex.P.4, injury nos.1 to 8 were abrasions and injury

nos.9 to 14 were contusions. She noted a scalp contusion on right parieto

occipital area of head, diffused subdural hemorrhages over cerebrum and

cerebellum, diffused omental contusions, liver contusion, both kidneys

and adrenals contused, and found 800 cc of blood in peritoneal cavity.

27. All the above injuries would indicate that the deceased was beaten

with a blunt weapon due to which all the internal organs of the body, like ::15:: Dr.GRR,J & SSRN,J crla_970_2013

liver, kidneys got contused and he also sustained head injuries; and the

cause of death was due to the head injury and blunt injury abdomen.

28. PW.8 was the witness for inquest panchnama. He stated that police

conducted inquest over the body of the deceased in his presence at

Mortuary of Osmania General Hospital and he opined that the deceased

died due to the said injuries. The inquest report was marked as Ex.P.5

through the said witness.

29. PW.9 was the Head Constable (No.5116) who registered the case

basing on the statement of PW.1, and issued F.I.R.

30. PW.10 was the Sub-Inspector of Police, who stated that he drafted

the statement of PW.1 and also recorded the 161 Cr.P.C. statement of

witnesses and also drafted the panchnama as per the instructions of the

Inspector of Police, as the Inspector was not in a position to write by

himself at that time.

31. PW.11 was the Inspector of Police, Saidabad P.S. at the relevant

time, and he stated about the investigation conducted by him. In his

cross-examination, he admitted the omissions extracted from the

statements of PWs.2 to 5.

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32. As seen from the evidence of the witnesses, there was nothing

extracted in their cross-examination to discredit their testimonies, except

extracting some material omissions. Even if the said portions of the

statements were omitted from their evidence, the evidence of PWs.2 and

3 is consistent with regard to the accused beating the deceased on

24.02.2010 between 07:00 P.M. to 08:00 P.M. and on 25.02.2010 in the

morning hours. Though there was delay in lodging the report to the

police, it could be seen that the incident occurred in a slum locality. The

witnesses were illiterates. PW.2 is a minor child aged about 12 years;

and the other witnesses were neighbours, who might not have taken the

incident seriously so as to report it to the police. As the deceased was

beaten by the accused with a pestle, there were no external bleeding

injuries on the body of the deceased. The major injuries sustained by the

deceased were contusions which caused internal bleeding rather than

external bleeding. Hence, the witnesses might not have suspected the

seriousness of the injuries. The close relatives of the deceased, i.e., his

wife and brother, not being present at the time of the incident, also might

have caused the delay in reporting the incident to the police. As such, the

delay itself could not be a reason to suspect the credibility of the evidence ::17:: Dr.GRR,J & SSRN,J crla_970_2013

of the witnesses. Admittedly, there was no enmity between the witnesses

to implicate the accused falsely in the case.

33. As seen from the judgment of the Hon'ble Apex Court, as relied

upon by learned counsel for the appellant in Thulia Kali vs. State of

Tamil Nadu1, the first information report in a criminal case is an

extremely vital and valuable piece of evidence for the purpose of

corroborating the oral evidence adduced at the trial. The object of

insisting upon prompt lodging of the report to the police in respect of

commission of an offence is to obtain early information regarding the

circumstances in which the crime was committed, the names of the actual

culprits and the part played by them, as well as the names of eye

witnesses present at the scene of occurrence. Delay in lodging the first

information report quite often results in embellishment which is a

creature of after-thought. It is therefore essential that the delay in lodging

the report should be satisfactorily explained.

34. In the case on hand, the evidence of witnesses would not disclose

that the first information report was a result of any embellishment or a

1973 AIR 501 ::18:: Dr.GRR,J & SSRN,J crla_970_2013

creature of after-thought, or it was a result of deliberation and

consultation.

35. As seen from the cross-examination of the witnesses, the only

suggestion given to the witnesses is that the accused did not beat the

deceased but he fell down because of heavy drinking. The evidence of

the doctor who conducted Post-Mortem Examination would disclose that

the cause of death was a result of the blunt injuries sustained by the

deceased on his head and abdomen, but not due to any accident or fall. It

was also not suggested to the doctor that the deceased was drunk, and the

injuries sustained by him were the result of his fall. The Post-Mortem

Examination report, marked as Ex.P.4, would not disclose the internal

organs smelling any alcohol. It was specifically stated that no specific

smell was felt at stomach. As such, the defense taken by the appellant

has no basis.

36. The other contention raised by the learned counsel for the appellant

was that there were material omissions in the evidence of the witnesses,

viz., PWs.2, 3 and 5, as stated above. Even if these omissions are

excluded, the evidence of the witnesses is consistent with regard to the

manner of the incident. The evidence of PWs.2 and 3 is consistent with

regard to the accused beating the deceased with a pestle on his stomach, ::19:: Dr.GRR,J & SSRN,J crla_970_2013

head and ankle on 24.02.2010 at about 08:00 P.M. PW.5 stated that he

witnessed the accused beating him on the next day morning, i.e., on

25.02.2010 with hands. The same is not extracted as an omission. Thus,

this evidence is good enough to bring home the guilt of the accused for

the offence under Section 302 of I.P.C.

37. Learned counsel for the appellant further contended that the

incident occurred in a spur of moment on a trivial issue; there were no

inimical relations between the accused and the deceased; there was no

intention to kill the deceased, and the case would not attract the offence

under Section 302 of I.P.C.; the case would fall under Section 304 Part II

of I.P.C.; and relied on the decisions of the Hon'ble Apex Court in Jagtar

Singh vs. State of Punjab2 and Gurmukh Singh vs. State of Haryana3.

38. In Gurmukh Singh (3 supra), the Hon'ble Apex Court had

extracted various judgments on the subject till then and observed the

various facts and circumstances of the case which need to be considered

whether the case would fall under Section 302 of I.P.C. or under Section

304 Part-II of I.P.C. In all the cases referred by the Hon'ble Apex Court,

AIR 1983 SC 463

Criminal Appeal No.1609 of 2009, dated 25.08.2009 ::20:: Dr.GRR,J & SSRN,J crla_970_2013

the appellants caused solitary injury, and the incidents occurred

unexpectedly in a sudden quarrel without premeditation.

39. In the present case, even if the incident on 24.02.2010 is considered

as occurred in a sudden quarrel without premeditation, it was not a

solitary injury and there were several injuries inflicted upon the accused

on the vital parts of the body, viz., head, stomach, causing contusion to

liver, kidneys, skull, adrenals, etc., which resulted in his death. The

accused even after the heat of passion cooled down, again visiting the

house of the deceased on the next day morning and attacking the unarmed

deceased person, who was not even in a position to respond, due to the

beatings given to him on the previous day, would show the gravity of the

incident. Therefore, the offence committed by the accused squarely falls

under Section 302 of I.P.C., but not under Section 304 Part II of I.P.C.

40. Hence, considering the circumstances of the case and the conduct

and behaviour of the accused involved in the incident, the weapon used

for inflicting injuries and the force with which the blows were inflicted on

the deceased, and the second incident took place not on the spur of the

moment, it is considered appropriate to inflict the punishment against the

accused for the offence under Section 302 of I.P.C. only.

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41. Therefore, the Criminal Appeal is dismissed confirming the

conviction and sentence imposed by the trial Court against the appellant

for the offence under Section 302 of I.P.C. No costs.

42. As a sequel, miscellaneous applications pending if any in this

appeal, shall stand closed.

_________________________ Dr. G.RADHA RANI, J

______________________________ SAMBASIVARAO NAIDU, J

Date : 16.09.2022 Ndr