Nandyala Bhumesh, Nizamabad Dt., vs State Of Telangana, Rep Pp.,
2023 Latest Caselaw 2659 Tel

              THE HON'BLE SRI JUSTICE K.LAKSHMAN
                              AND
               THE HON'BLE SMT. JUSTICE K.SUJANA

                  CRIMINAL APPEAL NO.70 OF 2015


JUDGMENT: (PER HON'BLE SMT JUSTICE K.SUJANA)


       This appeal is filed by the appellant who is accused in

S.C.No.302 of 2012 on the file of the VII Additional District and

Sessions Judge, at Bodhan. He was convicted for the offence under

Section 302 of the Indian Penal Code (for short 'IPC') and sentenced to

Rigorous Imprisonment for life and to pay a fine of Rs.1000/-, in

default of which to undergo Simple Imprisonment for two months.


2.     The brief facts of the case are that the appellant/accused and the

deceased are husband and wife. On 03.12.2011 the mother of the

deceased gave a complaint report in the Police Station, Banswada,

stating that on 06.05.2011 she performed marriage of her daughter

with   one   Nandhyala      Bhumesh      (appellant/accused)   and   gave

Rs.2,70,000/- towards dowry. After the marriage, her son-in-law

started harassing her daughter physically and mentally. Her daughter

was working as a Lecturer in Shashank Degree College, Banswada. Her

son-in-law and daughter took a rented portion in Sadanandam House

in Teachers Colony and were leading their marital life. Since her

son-in-law was harassing her daughter, her daughter was attending
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her job in Banswada from her house. On 03.12.2011 her daughter did

not return to house till 05:00 P.M. She waited till 09:00 P.M., and

called her daughter over phone but her daughter's phone was switched

off. Then she, along with her eldest son and neighbour went to the

house which was taken on rent by her son-in-law and daughter, but

she found that the doors were latched. When she saw from window, she

found her daughter lying in a pool of blood without any movement and

her son-in-law was also lying there. On seeing them, she raised hues

and cries and neighbours gathered. When the back doors were

forcefully opened, she saw her daughter with injuries on neck and

lodged complaint against her son-in-law stating that he killed her

daughter. She also stated that the accused himself tried to commit

suicide by cutting his wrist veins of left hand with knife.


3.    Basing on the complaint lodged by the mother of the deceased,

the Police registered a case in Crime No.236/2011 against the accused

under Sections 302, 498-A and 309 of IPC. After completion of

investigation, a charge sheet was filed against accused for offences

under Sections 498-A, 304-B, 302 and 309 of IPC.


4.    To prove its case, the prosecution examined PWs.1 to 15 and got

marked Exs.P1 to P8 and MOs.1 and 2. After closure of prosecution

evidence, the accused was examined under Section 313 Cr.P.C. The

accused denied the same as false. On behalf of accused, Exs.D1 to D.3
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were marked. After going through the oral and documentary evidence,

the trial Court convicted the accused, as stated supra.


5.    Heard Smt G.Jaya Reddy, learned counsel for appellant/accused

and    learned    Additional   Public    Prosecutor,      appearing    for

respondent - State.

6. Learned counsel for appellant would submit that though there

was no direct evidence against the appellant, the trial Court arrived at

conclusion on the basis of circumstantial evidence and convicted the

appellant, which is not tenable. The circumstances relied by the

prosecution were not proved beyond reasonable doubt. She further

submitted that the trial Court ought to have seen that the deceased

was staying with her parents since one month from the date of alleged

incident, whereas, as per the evidence of PW.7, the deceased and the

accused lived at her house in Teachers' Colony as tenants and they

used to attend their jobs regularly and lived happily. Therefore, as put

forth by the prosecution that on the date of the alleged incident only,

the deceased and the accused came together, appears to be falsified by

the evidence of PW.7.

7. Learned counsel for appellant further contended that the main

door of the house was bolted and the deceased and accused were lying

in a pool of blood but the back door of the house was not bolted which KL, J & SKS, J Crl.A.No.70 of 2015

clearly shows that there existed a possibility of thieves entering into the

house and committing theft by inflicting injuries on the accused and

deceased. She further contended that as there is no evidence on record

to prove the allegations against the accused, he is entitled for acquittal.

As such, prayed this Court to acquit the appellant/accused by setting

aside the impugned judgment dated 12.01.2015.

8. On the other hand, the learned Additional Public Prosecutor

submitted that the evidence on record is sufficient to prove the guilt of

the accused. He stated that there was no denial of the facts that at the

time of incident the accused and deceased were together, the main door

was closed and the deceased was found dead in a pool of blood which

clearly leads to the conclusion that accused was responsible for the

death of the deceased. Therefore, there are no infirmities in the

judgment of the trial Court, as such, prayed this Court to dismiss the

appeal.

9. Though the accused was charged for offences under Sections

498-A, 304-B, 302 and 309 of IPC, the trial Court declared that the

charges under Sections 498-A, 304-B and 309 were not proved by the

prosecution and the appellant was found not guilty for the said

offences. He was convicted only for the offence punishable under

Section 302 of IPC.

KL, J & SKS, J Crl.A.No.70 of 2015

10. Now, the points for determination are :

1. Whether the death of the deceased is homicidal ?

2. Whether the prosecution proved the guilt of the accused for the offences under Sections 302 of IPC beyond reasonable doubt?

3. Whether the judgment of trial Court needs interference ?

POINT NO.1 :

11. To prove that the death of the deceased is a homicidal death and

the accused was responsible for death of the deceased, the prosecution

examined PWs.1 to 15.

 PW.1 is the mother of the deceased and the complainant. She

deposed that the deceased was working as Lecturer in Shashank

College, Banswada and the accused was working as Teacher. At

the time of marriage, Rs.2,70,000/- cash, half tula gold and

household articles worth Rs.30,000/- were given. After the

marriage, the accused and the deceased lived happily for one

month. After one month of marriage, the accused,

brothers-in-law and mother-in-law of the deceased started

harassing the deceased alleging that she brought less dowry

amount. Due to disputes between the in-laws and the deceased,

the accused and deceased started living separately and took a

rented house in Teachers' Colony, Banswada. She further

deposed that the accused and deceased lived in a separate KL, J & SKS, J Crl.A.No.70 of 2015

house for two months, thereafter, the accused started beating

and harassing the deceased. The mother-in-law of the deceased

also harassed the deceased saying that the accused would

neither work nor pay the monthly rent and the deceased has to

maintain accused. As such, the deceased left the rented house

and started living in her parents' house. PW.1 stated that on the

date of incident, her daughter did not return to the house till

09:00 P.M. When she called the deceased over phone, her phone

was switched off. Then she, along with her son and neighbour

went to the house of accused where through window she found

the deceased lying in a pool of blood.

 PW.2 is the father of the deceased. He deposed on the same lines

as that of PW.1.

 PW.3 is the brother of the deceased. He deposed on the same

lines as that of PWs.1 and 2.

 PW.4 is the neighbour of PW.1 & PW.2. He accompanied PW.1 to

Banswada when the phone of the deceased was switched off. He

deposed that he found the deceased lying in a pool of blood in

the rented house of the accused.

 PW.5 is the relative of deceased and PWs.1, 2 & 3. He deposed

that once deceased informed him about the harassment of

accused and his parents with regard to additional dowry.

KL, J & SKS, J Crl.A.No.70 of 2015

 PW.6 is the father of PW.4 (neighbour). He deposed that on the

date of incident the deceased went to attend her job in

Banswada and did not return to house till 08:00 P.M., and her

phone was also switched off. Then PW.1 came to him and

informed the same to him, thereafter, he sent his son PW.4 along

with PW.1.

 PW.7 is the owner of the rented house of accused and deceased.

She deposed that the accused and deceased lived in her house

happily as tenants. They used to attend their jobs regularly. She

further deposed that on the date of incident also when they

returned home after attending their jobs, they went inside the

house and closed doors. At about 10:00 P.M., she heard public

gathering and commotion. The said public knocked the front

door but it was not opening, then they opened the back door and

entered into the house and saw the deceased lying in her house

in a pool of blood. Then the deceased was shifted from the house

and the house door was locked by the Police.

 PW.8 is the photographer.

 PW.9 is the colleague of the deceased. He deposed that on the

date of incident the deceased attended college and he was in

college till 03:00 P.M., and went away. He also deposed that the

deceased was also in college till 03:00 P.M.

KL, J & SKS, J Crl.A.No.70 of 2015

 PW.10 is the neighbour of the accused and the deceased. He

deposed that he came to know about the incident at 10:30 P.M.,

through his wife and then he went to the hospital.

 PW.11 is the panch for scene of offence.

 PW.12 is the Tahsildar who conducted the scene of offence

panchanama.

 PW.13 is the Doctor who conducted the autopsy over the dead

body of the deceased.

 PW.14 is the Investigating Officer.

 PW.15 is the Officer who filed charge sheet after verifying the

investigation done by PW.14.

12. The evidence on record shows that on the date of incident the

deceased and accused were in theie house. When PW.1 called her

daughter, the phone was switched off. On that, she suspected the

accused and came to the house rented by the accused and deceased

along with PW.3 and PW.4. When she knocked the door of the house,

the door seemed locked. Then from the window she found her daughter

lying in a pool of blood. On that, she raised hues and cries. When they

went into the house from back door, they found that the accused was

also lying on the floor and it seemed as if he tried to commit suicide by

cutting his wrist. In substance, the evidence of PWs.1 to 6 also shows

that after attending her job, the deceased did not return to the house of KL, J & SKS, J Crl.A.No.70 of 2015

PW.1. On that, PW.1 along with her son (PW.3) and neighbour (PW.4)

went to Banswada where through window they found the deceased

lying in a pool of blood and accused was also lying on the floor.

13. It is noticed that PWs.1 and 4 consistently deposed that the front

and back door were locked from inside, as such, they opened back door

and entered into the house and saw the deceased dead and also found

scratches over her throat. The evidence of PW.13 (Medical Officer)

shows that on 04.12.2011 he received intimation to conduct autopsy

over the dead body of the deceased - Smt Rajyalaxmi alias Harshitha.

He found multiple bruices and scratch marks around the neck that

were oval in shape, the neck structures were congested and the hyoid

bone was fractured on the left side. He deposed that according to him

the cause of death was cardio respiratory arrest due to asphyxia due to

throttling. PW.13 was not cross examined by the defence counsel.

14. Therefore, the evidence of PWs.1 , 3, 4 and 13 clearly proves that

the death of the deceased is a homicidal death. Accordingly, this point

is answered.

POINT Nos.2 and 3:

15. Now, it is to be seen whether there is sufficient evidence to

connect the accused with the homicidal death of the deceased. The

evidence of PWs.1, 4 and 7 shows that the deceased and accused were KL, J & SKS, J Crl.A.No.70 of 2015

living in a rented house in Teachers' Colony. When PWs.1 and 4 went

to the said house, they found that the door was locked from inside and

when they saw from the window, they found the deceased lying in a

pool of blood. Immediately, they opened the back door and entered the

house where they found accused also lying on the floor.

16. The defence taken on behalf of accused was that few thieves

entered into the house, committed theft of mangalasutra of his wife,

killed his wife and also attacked him, as such, he also sustained

injuries. Though accused took such defence and stated the same in the

examination under Section 313 Cr.P.C., in the evidence of PW.7 who is

the owner of rented house of accused and deceased, she categorically

denied the suggestion that on the day of incident she heard cries of

thieves but did not come out of the house due to fear. PWs.1, 4 and 7

categorically deposed that the front door was closed and bolted from

inside, as such, they entered inside the house from the back door by

opening it forcefully which means both the doors were closed from

inside. Primarily, even assuming that thieves entered into the house,

there would be commotion and chance for the accused to raise hues

and cries to invite attention of neighbours, but no such instance was

spoken to by the witnesses. Secondly, even assuming that the thieves

entered into the house, it would not be possible for them to bolt the

doors from inside. Therefore, all the witnesses, including PW.7 KL, J & SKS, J Crl.A.No.70 of 2015

categorically denied the above stated suggestion put up on behalf of

accused. However, if really the offence was committed by the thieves,

the accused ought to have reported the same to the Police immediately.

Moreover, the parents and brothers of the accused also resided in the

nearby locality, he could have informed them. Therefore, the defence of

the accused is not tenable. As far as the mangalasutra is concerned,

the investigating Officer deposed in the cross examination that the

mangalasutra was given to the parents of the deceased before

conducting the postmortem of the dead body. Therefore, the defence of

the missing of mangalsutra was also ruled out.

17. The evidence on record establishes that except the accused and

the deceased, no one entered the house and the same was not denied

by the accused. There was no possibility for third person to enter the

house as the front and back doors were bolted from inside, as spoken

by PW.4. Therefore, it can be concluded that at the time of commission

of offence, there was nobody in the house except the accused and the

deceased. Furthermore, the explanation offered by the accused in his

examination under Section 313 Cr.P.C., does not inspire the confidence

of the Court. At this stage, it is apparent to note that PW.13 (Medical

Officer) deposed that he found injury on the wrist of the accused.

Therefore, in view of the above discussion, as per Section 106 of the KL, J & SKS, J Crl.A.No.70 of 2015

Evidence Act, 1872 1, the accused has to explain as to what transpired

between him and the deceased. However, this Court is of the opinion

that the explanation offered by the accused is not convincing. Hence, as

per the evidence on record and keeping in view all the circumstances of

the case, it can be concluded that the accused is responsible for the

death of the deceased.

18. Though it is proved that the accused is responsible for the death

of the deceased, now it is to be seen whether, a culpable homicide

would amount to murder and whether the conviction of the appellant is

for the offence under Section 302 IPC justified.

19. When the Court is confronted with the question, what offence the

accused could be said to have committed, the true test is to find out the

intention or knowledge of the accused in doing the act. If the intention

or knowledge was such as is described in Clauses (1) to (4) of Section

300 IPC, the act will be murder even though only a single injury was

caused.

20. Section 304 IPC defines this section in two parts. If analyzed, the

Section provides for two kinds of punishments or two different

situations. The first is that if the act by which the death is caused with

an intention of causing death or causing such bodily injury is likely to

106. Burden of proving fact especially within knowledge. -- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

KL, J & SKS, J Crl.A.No.70 of 2015

cause death. Here, the ingredient is with an intention. The second is

that if the act is done with knowledge that it is likely to cause death but

without any intention to cause death or such bodily injury as is likely

to cause death.

21. In Lavghanbhai Devjibhai Vasava Vs State of Gujarat 2, the

Hon'ble Supreme Court laid down certain parameters for consideration

while deciding the question as to whether a case falls under Section

302 or Section 304 IPC. They read as under:

"Penal Code, 1860 - S.302 or S.304- Parameters to be taken into consideration while deciding question as to whether a case falls under S.302 or S.304-Summarised.

The parameters, inter alia, which are to be taken into consideration while deciding the question as to whether a case falls under Section 302 IPC or Section 304 IPC, are as follows :

(a) The circumstances in which the incident took place;

(b) The nature of weapon used;

(c) Whether the weapon was carried or was taken from the spot;

(d) Whether the assault was aimed on vital part of body;

(e) The amount of the force used;

(f) Whether the deceased participated in the sudden fight;

(g) Whether there was any previous enmity;

(h) Whether there was any sudden provocation;

(i) Whether the attack was in the heat of passion; and

(j) Whether the person inflicting the injury took any undue advantage or acted in the cruel or unusual manner."

2 (2018) 4 Supreme Court Cases 329 KL, J & SKS, J Crl.A.No.70 of 2015

22. In the present case, it is clear from the evidence of PW.1 and

PW.4 that after the accused killed the deceased by throttling her neck,

he tried to commit suicide by cutting his own wrist, which proves that

there was some disturbances between the accused and deceased and

on the spur of the moment the accused killed the deceased and then he

also wanted to end his life by committing suicide. Therefore, the

narration of facts and the evidence on record is not sufficient to prove

the intention of the accused to kill the deceased.

23. In Sarabjeet Singh Vs. State of Uttar Pradesh 3 the Hon'ble

Apex Court observed that every death must not be viewed so as to charge

the one who caused death as a murderer. Such an approach would remove

the well recognized line between culpable homicide amounting to murder and

culpable homicide not amounting to murder. Primarily, to determine any

action taken by the criminal, his state of mind is very relevant. The state of

mind may either disclose intention or knowledge and that is a very relevant

factor. The intention or knowledge may be inferred from the surrounding

circumstances, such as, the genesis of the occurrence, the motive, the weapon

used, the seat of injury, the ferocity of the attack, etc.

24. In the case on hand also, admittedly, due to various reasons

there were disturbances in the marital life of accused and deceased.

The Marriage of accused and deceased being love marriage, the parents

1984 SCC (CRI) 151 KL, J & SKS, J Crl.A.No.70 of 2015

of accused were not happy, is the contention of PW.1, therefore, it

cannot attribute intention to the appellant for killing the deceased.

Appellant also tried to commit suicide after killing his wife shows that

the incident occurred in spur of the moment without any

premeditation. Accordingly, point Nos.2 and 3 are answered.

25. Further, the trial Court came to the conclusion that the accused

and deceased were only present in that house and as both the doors

were closed, the accused is responsible for the death of deceased. The

trial Court has not discussed the evidence on record with regard to the

intention of the accused and erroneously came to the conclusion that

culpable homicide amounts to murder and convicted the accused for

offence punishable under Section 302 of IPC. In view thereof, this Court

is of the opinion that the impugned judgment dated 12.01.2015 is not

legally sustainable and it suffers with irregularity, as such, it is liable to

be interfered with.

26. Considering the evidence/material on record, we are of the

opinion that this case falls under Part-II of Section 304 IPC as there is

no intention to cause death of the deceased and there is no motive

attributed by the prosecution to the accused. Accordingly, Point Nos. 2

& 3 are answered.

KL, J & SKS, J Crl.A.No.70 of 2015

27. In view thereof, the appellant is guilty for the offence punishable

under Section 304 Part-II IPC and his conviction under Section 302 IPC is

therefore, set aside. Hence, the sentence imposed on the appellant is

reduced to the period already undergone by him. Accordingly, the appeal

preferred by the appellant is partly allowed. The bail bonds of the accused

shall stand cancelled. He is set at liberty, forthwith, if he is not required in

any other crime or case.

____________________ K. LAKSHMAN, J

__________________ K.SUJANA, J

Date : 23.09.2023 PT KL, J & SKS, J Crl.A.No.70 of 2015

HON'BLE SRI JUSTICE K. LAKSHMAN AND HON'BLE SMT JUSTICE K. SUJANA

P.D. JUDGMENT IN CRIMINAL APPEAL No.70 OF 2015

(Pre-delivery judgment of the Division Bench prepared by the Hon'ble Smt Justice K. Sujana)

Date: 23.09.2023 PT