Telangana High Court

Kalamori Chinna Narsimha vs The State Of Ap., on 18 April, 2024

Author: P.Sam Koshy

Bench: P.Sam Koshy

          THE HON'BLE SRI JUSTICE P.SAM KOSHY
                          AND
      THE HON'BLE SRI JUSTICE SAMBASIVARAO NAIDU

                  CRIMINAL APPEAL No.266 of 2014

JUDGMENT:

(per the Hon'ble Sri Justice P.SAM KOSHY)

The instant appeal under Section 374(2) of the Criminal

Procedure Code, 1973, has been filed by the appellant/accused

assailing the judgment of conviction dated 27.01.2014 passed by

the learned IX Additional District and Sessions Judge, Wanaparthy

(for short, the 'Trial Court') in S.C.No.239 of 2012.

2. Heard Mr. P.Prabhakar Reddy, learned counsel for the

appellant and the learned Public Prosecutor appearing for the

respondent - State.

3. Vide the impugned judgment, the Trial Court has found the

appellant guilty for the offence under Section 302 of the Indian

Penal Code, 1860 (for short, 'IPC'). Upon convicting the appellant,

the Trial Court has sentenced the appellant to undergo rigorous

imprisonment for life and fine of Rs.5,000/- along with default

stipulation.

4. The case of the prosecution is that around four (04) years

prior to September, 2011, the appellant is said to have got married

to Smt. Yellamma (hereinafter referred to as the deceased) and

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there were no children born from the said marriage. Sometime

before the date of incident, the deceased is said to have been

complaining to her parents with regards to the harassment she was

subjected to at the hands of the appellant on the ground of

infidelity on the part of the deceased. Subsequently, on the

intervening night of 31.08.2011 and 01.09.2011, the appellant is

said to have picked up a quarrel with the deceased and later on

assaulted her with his hands and fist and the deceased

subsequently succumbed to the injuries suffered.

5. As per the prosecution case, it is said that P.W.5

(Rameshwaramma) was an eye witness to the incident. P.W.5 is the

person who had immediately rushed and sought assistance from

P.W.4 (Niranjan) who is one of the relatives of the family. P.W.4

thereafter called upon P.W.6 (Venkatswamy) and P.W.7

(Venkataiah) and rushed to the house of the appellant where they

found the deceased dead. Subsequently, the information was sent

to P.W.1, the brother of the deceased, who came rushing to the

house of the deceased and later on went to P.W.8 (Ramakrishna

Goud), the village sarpanch and subsequently got a complaint

lodged in the Kollapur police station. The police authorities of

Kollapur police station registered Crime No.81 of 2011 and took

cognizance of an offence under Section 302 of IPC. The appellant

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was arrested on 04.09.2011. Meanwhile, the dead body of the

deceased was sent to Government Hospital for autopsy.

6. In the course of trial, the prosecution examined as much as

fourteen (14) witnesses; however, there was no evidence on the part

of the defence. Subsequently, on recording the statement of the

appellant under Section 313 of Criminal Procedure Code, the

impugned judgment of conviction was passed with the sentence of

rigorous imprisonment for life and fine amount of Rs.5,000/-.

7. Learned counsel for the appellant assailing the impugned

judgment contended that the findings of the Trial Court are

pervasive and in contravention to the evidence on record. Likewise,

it was also contention that the Trial Court strongly relied upon the

evidence of P.W.5. However, P.W.5 was not in a position to state as

to how the appellant had killed the deceased except for the fact

that there was a quarrel and the appellant is said to have assaulted

the deceased. Except for P.W.5 there was no other evidence to

substantiate the case of the prosecution. He also tried to suggest

that the deceased must have got killed by her first husband with

whom there has been no official divorce taken place.

8. Lastly it was contended that the Trial Court also failed to

appreciate the fact that P.W.5, as it is, was not a witness with full

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sound mind and that the evidence of P.W.5 was therefore not

reliable. Thus, prayed for setting aside of the impugned judgment

of conviction and for acquitting the appellant from all the charges

leveled against him.

9. Per contra, the learned Public Prosecutor took the Court

through the evidences led by the prosecution in the Trial Court and

contended that, since it is a case of eye witness i.e. P.W.5, there is

hardly any scope left for accepting the contentions put forth by the

learned counsel for the appellant.

10. It was also the contention of the learned Public Prosecutor

that the eye witness i.e. P.W.5 is the daughter of the appellant

himself born from his first wife. Therefore, there is hardly any

scope left for interfering with the impugned judgment. Learned

Public Prosecutor also referred to the statement of P.W.4 which

gets strengthened from the evidence of P.W.5 so as to substantiate

the case of the prosecution.

11. Learned Public Prosecutor further submits that the fact that

the appellant suspected infidelity so far as the deceased is

concerned establishes the motive and thus prayed for rejection of

the appeal by affirming the judgment of conviction.

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12. Having heard the contentions put forth on either side and on

perusal of records, admittedly the entire case of the prosecution

rests upon the evidences of P.Ws.5 and 4. The other witnesses were

all incidental witnesses. In the given factual backdrop, it would be

relevant to take note of the evidences of P.Ws.5 and 4. The relevant

portion of the statement of P.W.5 for ready reference is reproduced

herein under:

"Myself my husband Swamy, deceased Yellamma and the accused together used to live in the same house. On the day of incident there were quarrels between my step mother Yellamma and the deceased as he was suspecting her character alleging that she was going with some persons in the village. The said quarrels took place in night hours. In that quarrel accused stabbed Yellamma. Deceased sustained injuries on the back, chest and other parts of the body and the blood also oozed from injuries. Immediately after that, I went and informed to P.W.4. who resides nearby our house. When P.W.3. came on my information accused on seeing him fled away from the house."

13. Similarly, the relevant portion of the statement of P.W.4 for

ready reference is also reproduced herein under:

"The distance between the houses of myself and deceased Yellamma, is about 300 feets. On the intervening night of 30th August, 2011/1.9.2011 in the mid night hours at 2-00AM L.W.3. Rameshwaramma came to my house woke up me and informed that deceased Yellamma and accused were quarelling with each other. on that myself, L.W.5 Venkata swamy and L.W.6 Venkataiah went to the house of accused. By the time we reached there, we found deceased Yellamma died with injuries, on the

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right eye and right side of the neck. The dead body was found on the pail of their house. Accused was there with the dead body of the deceased. On seeing the gathering of the villagers, accused fled away from his house. Villagers went and brought the accused back. On the next day morning P.W.1 went to the Police Station for reporting, Police came at about 10- 00 or 11-00 AM on the next day morning. Later police examined me. The villagers gathered at the house of the accused, beat him but he did not reveal anything as to how the deceased died."

14. In addition to the aforesaid depositions of P.Ws.5 and 4,

it would also be relevant to take note of the evidence of P.W.12, the

Doctor who conducted the post-mortem examination, which reads

as under:

"1) A lacertilian below the right eye 3×.5 × 2 CM

2) Dark skar marks over the face, neck and chest.

3) Presence of depressed chest on the left side.

4) Dark brown pigmentation, over the left chest two in numbers.

5) Dark brown pigmentation over the left invinal region.

On opening the dead body I found a laceration over media sternum measuring .5 × .5 CM. Presence of massive bleeding over pericardial. The probable death was due to blunt injury on the chest. Ex.P6 is the PME report issued by me."

P.W.12 in the course of his evidence has also deposed that the

injuries caused on the body of the deceased could also be possible

if she has forcefully fallen on hard objects.

15. From the injuries that are reflected in the preceding

paragraphs, apparently the injuries No.3, the presence of

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depressed chest on the left side seems to be the major injury and

there does not appear to be any other injuries other than the injury

No.3 referred to above.

16. Now coming to the evidence of P.W.5, what is really to be

appreciated is the fact that P.W.5 is in fact the real daughter of the

appellant himself, yet she has shown the courage of deposing

against her father. The deceased being the step mother, P.W.5

could have simply denied the factual matrix of the case. Another

fact which needs to be appreciated is that P.W.5 is a twenty-three

(23) year old lady when the evidence was examined and she was a

married person.

17. Likewise, P.W.4 also is a nephew of the appellant who resides

in the nearby vicinity. P.W.4 had a cordial relationship with the

appellant stands established that at odd hours P.W.5 could only

think of calling P.W.4 for help when the appellant was allegedly

assaulting the deceased, the step mother of P.W.5.

18. From the evidence of P.Ws.5 and 4, there can be no doubt as

to the incident to have occurred, P.W.5 having witnessed and

rushing to the house of P.W.4, P.W.4 and others rushing to the

house of the appellant and there they find the deceased dead with

injuries. Seeing the P.W.4 and other villages at the sight, the

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appellant tried to flee away from the said place; however, the

villagers caught hold of the appellant and brought him back. Thus,

from the evidence which has come on record, the incident stands

established, the death of the deceased is established and the death

of the deceased was because of the injuries stands proved from the

evidence of P.W.12. Last but not the least, the deceased being

assaulted by the appellant also stands established from the

deposition of P.Ws.5 and 4 respectively. Thus, the deceased died

because of the injury caused on account of the appellant

assaulting the deceased also stands established.

19. Now the only question to be appreciated by this Bench is

whether the appellant can be charged and convicted for the offence

under Section 302 of IPC. The reason to deal with the said issue is

taking into consideration the post-mortem examination given by

P.W.12 in which there appears to be only one serious injury on the

body of the deceased, that to of the depressed chest on the left

side. Other than the said injury, there does not seem to be any

other major injury. The appellant and the deceased were related as

husband and wife. The consistent evidences which have come on

record shows that the appellant doubted the fidelity of the

deceased and there were also frequent quarrels between the

appellant and the deceased in the past. The fact that there was

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only one major injury on the body of the deceased also goes to

show that the appellant did not intend to kill the deceased, but

because of the quarrel that took place immediately before the

incident between the appellant and the deceased, it appears that in

the spur of the moment and in the heat of passion the appellant

seems to have assaulted the deceased. However, because of her

lean, thin and weak body structure, it appears that she has

collapsed incidentally. Thus from the above facts, it is clear that

the accused had not used any weapon to assault the deceased.

20. In the given factual backdrop, it is now necessary to consider

a couple of decisions in this regard. The High Court of Kerala in the

case of Raman vs. State of Kerala 1 in paragraph Nos.12 to 17

held as under:

"12. The learned counsel for the appellant submitted that the evidence of PWs. 1 to 3 cannot be believed. She submitted that the behaviour of PW 1 is suspicious since he did not go to the house of the accused on the information given by the accused that the deceased did not take water and the accused had beaten her. The learned counsel also submitted that the recovery of material objects is doubtful and many blood stained articles Page: 2993 alleged to have been seized by the police were not sent for Chemical Analysis. The learned counsel also submitted that even assuming that the accused has committed any offence, it would not attract Section 302 of the IPC

2015 SCC Online Ker 39691

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and at best, the offence would be one under the second part of S. 304, IPC.

13. She also relied on the decision of the Supreme Court in Kusha Laxman Waghmare v. State of Maharashtra (AIR 2014 SC 3839).

14. As stated earlier, there is nothing to disbelieve the evidence of PWs. 1 to 3. We do not also think that the conduct and behaviour of PW 1 was suspicious in the facts and circumstances. MOs. 1 to 3 were seized as per Ext. P4 Scene Mahazar. As rightly held by the court below, we do not think that MOs. 1 and 3 were recovered as per Ext. P3 Mahazar. The prosecution case to that extent is not believable.

15. In Kusha Laxman Waghmare v. State of Maharashtra (AIR 2014 SC 3839), the Supreme Court held thus:--

"After giving our anxious consideration in the matter and after analysing the entire evidence, we are of the view that it is not a fit case where conviction could be sustained under Section 302, IPC. The weapon used by the appellant is a wooden stick and as per the prosecution case, the deceased was severely beaten by the said stick. As a result thereof, she died. There is no cogent evidence to show that the appellant had beaten the deceased with an intention to cause her death. In such circumstances, the conviction of the appellant under Section 304, Part-II, IPC will be just and proper."

16. In Anil v. State of Kerala (2014 (4) KLT 489), a Division Bench of this Court held thus:

"But, the nature of the transaction and all attendant circumstances would clearly show that the alleged acts, though could have been done with the knowledge that they are likely to cause death, were evidently done without any intention to cause death or to cause such bodily injury as is likely to cause death. Under such circumstances, we are of the view that the legal evidence on record proves, only that the accused had committed the offence

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punishable under Part-II of S. 304, IPC. The conviction and sentence are, therefore, to be altered accordingly."

17. Ext. P4 Scene Mahazar shows that one crow bar and a hammer were found in the house of the accused. There is no case that the crow bar or hammer were used by the accused to beat his wife. On the other hand, the specific case of the prosecution is that the accused inflicted injuries on the deceased with M.O. 1 and M.O. 2. When PW 9 was examined, he was asked whether the injuries could be caused with M.O. 1 stick. It is also alleged that M.O. 3 stem of a coconut leaf was also used for inflicting the injuries. From the facts and circumstances, it is not discernible that the injuries were inflicted with an intention to cause the death of the victim or to cause such bodily injury as is likely to cause death. However, it is clear that the acts were done by the accused with the knowledge that it is likely to cause death of the victim. We are of the view that the offence under Section 302, IPC is not attracted in the case and only an offence under Section 304 Part-II, IPC is made out."

21. Further, the Hon'ble Supreme Court in the case of

Lavghanbhai Devjibhai Vasava vs. State of Gujarat 2 laying down

the basic parameters to consider while deciding the question as to

whether a case falls under Section 302 IPC or Section 304 IPC in

paragraph Nos. 6 to 8 as held as under:

"6. We have perused the evidence in this behalf. We find that the prosecution case itself proceeds that the incident took place in the spur of moment. On 15-3- 2008, when the deceased along with her mother went for labour work in agricultural field and she returned home around noon, she was preparing lunch in the

(2018) 4 SCC 329

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kitchen when, as per the prosecution story, the appellant came to the house and questioned the deceased about delay in cooking lunch. On this, altercation took place between the appellant and his wife. At that stage, the appellant got furious and in a rush of the moment, he picked a wooden object lying near the place of incident and inflicted injury to the deceased. It is also an admitted case of the prosecution that only one single blow was inflicted.

The death of Shakuben took place 10 days after the said incident while she was undergoing treatment at Baroda Hospital. This is the case of the prosecution itself.

7. This Court in Dhirendra Kumar v. State of Uttarakhand [Dhirendra Kumar v. State of Uttarakhand, 2015 SCC OnLine SC 163] has laid down the parameters 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, which are the following:

(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.

8. Keeping in view the aforesaid factors it becomes evident that the case of the appellant would fall under Section 304 IPC as the incident took place due to a sudden altercation which was a result of delay in preparing lunch by the deceased. The appellant picked up a wooden object and hit the deceased. The medical evidence shows that not much force was used

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in inflicting the blow to the deceased. The prosecution has not set up any case suggesting that relationship between the husband and wife was not cordial, otherwise. Manifestly, the incident took place due to sudden provocation and in a heat of passion the appellant had struck a blow on his wife, without taking any undue advantage. We are, therefore, of the opinion that it was an offence which would be covered by Section 304 Part II IPC and not Section 302 IPC."

22. Keeping in view the aforesaid judicial pronouncements and

the legal principles laid down by the Hon'ble Supreme Court and

also by the various other High Courts, we are of the considered

opinion that it is a case where the appellant cannot be found guilty

of having committed the offence under Section 302 of IPC.

However, since the incident and the role of the appellant stands

established and the given factual backdrop as has been narrated in

the preceding paragraphs, we are inclined to convert the conviction

of the appellant from that of Section 302 to one under Section 304

Part II of IPC i.e. culpable homicide not amounting to murder and

convict the appellant for the said offence under Section 304 Part II

of IPC.