Telangana High Court

Malothu Hussain, Khammam Dt., vs The State Of Ap., Rep Pp And Anr., on 19 August, 2024

Author: P.Sam Koshy

Bench: P.Sam Koshy, N.Tukaramji

                 THE HON'BLE SRI JUSTICE P.SAM KOSHY
                                 AND
                 THE HON'BLE SRI JUSTICE N.TUKARAMJI

                       CRIMINAL APPEAL No.78 of 2016

JUDGMENT:

(per the Hon'ble Sri Justice P.SAM KOSHY) The instant is an appeal under Section 374(2) of Cr.P.C filed by

the appellant - accused challenging the judgment of conviction dated

02.02.2015 in Sessions Case No.277 of 2015 passed by the Principal

Sessions Judge at Khammam.

2. Heard Mrs. Uma Devi Nama (Legal Aid), learned counsel for the

appellant and Mr. Syed Yasar Mamoon, learned Additional Public

Prosecutor appearing for the respondent - State.

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

appellant guilty for the offence punishable under Section 302 of the

Indian Penal Code,1860 (for short, 'IPC') and have sentenced him to

undergo rigorous imprisonment for life and fine of Rs.1,000/- with

default stipulation.

4. The case of the prosecution, in brief, is that on 20.03.2015 at

around 7:00 P.M., the appellant and one Guruswamy ('deceased'

hereinafter) under drunken condition is said to have picked up a

quarrel and in the course of quarrel between the two, the appellant is

said to have picked up a broken piece of chair and assaulted the

deceased. The assault fell on the head of the deceased causing severe

injuries and bleeding. He was later on admitted in the hospital where

he succumbed to the injuries on the next day i.e. 21.03.2015. PW.1

(Golusula Anjamma), who is the wife of the deceased, lodged a

complaint at Khammam III Town Police Station where the matter was

registered as Cr.No.52 of 2015. The matter was enquired and

investigated upon and after filing of the charge sheet, the matter stood

committed to the Trial Court where the case was registered as

Sessions Case No.277 of 2015.

5. In the course of trial, the prosecution examined as many as

thirteen witnesses and got marked nine documents i.e. Exs.P1 to P9.

There were no witnesses examined on behalf of the appellant, nor was

there any document was marked in defence. After recording the

statement of the appellant under Section 313 of Cr.P.C, the Trial

Court finally vide the impugned judgment dated 02.02.2015 found the

appellant guilty and sentenced him to under rigorous imprisonment

for life and fine of Rs.1,000/- with default stipulation.

6. Learned counsel for the appellant at the outset contended that

even if the entire case of the prosecution is accepted on its face value

there does not seem to be any serious inimical terms between the

appellant and the deceased. It was also contended that there does not

seem to be any motive or intention established by the evidence led on

behalf of the prosecution and that both the appellant and the

deceased used to reside in the same house establishes the fact that

the relation between the two was not strained, nor inimical, but was

cordial.

7. It was contended by the learned counsel for the appellant that

the deceased as also the appellant both were considered to be

drunkards in the area which they were living and both of them were

surviving from whatever they used to get from begging on the roads. It

was further contended that prima facie it appears that at the time of

the incident both the appellant and the deceased were in drunken

condition and under the influence of alcohol, the incident seems to

have occurred. Therefore, the appellant deserves for a lenient

consideration and thus prayed for setting aside of the impugned

judgment of conviction and also prayed for acquittal of the appellant.

8. Per contra, the learned Additional Public Prosecutor opposing

the appeal contended that the evidences of PW.6 (P.Aparna) and PW.7

(Mateti Ananthalaxmi) are critical, as both the eye witnesses have

witnessed the appellant assaulting the deceased. It was also

contended by the learned Additional Public Prosecutor that after the

deceased had fell down on the push given by the appellant, he picked

up a broken piece of a chair and assaulted the deceased resulting in

grievous injuries on the vital part of the body i.e. the head to which he

later succumbed.

9. According to the learned Additional Public Prosecutor, the

presence of the appellant at the scene of occurrence is not in dispute,

so also the quarrel that took place between the two is also not in

dispute. The incident happened when the appellant was said to be

admittedly available at the house further strengthens the case of the

prosecution. Thus, in the given factual backdrop, according to the

learned Additional Public Prosecutor the impugned judgment of

conviction does not warrant interference.

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

perusal of records, as would be evident from the witnesses examined

on behalf of the prosecution, particularly the next door neighbours

PW.6 and PW.7, the appellant and the deceased were surviving by way

of begging on the roads and both of them were residing at the house of

one Umakantha Rao. Both of them were frequently found by the

neighbours in drunken condition together and frequently picking up

quarrel after getting drunk. The fact that the two were staying together

establishes that there was no inimical terms between the two, rather

the relationship was cordial. The so-called fight that took place on the

date of incident i.e. on 20.03.2015 again was picked up on refusal of

the deceased to provide money to the appellant to consume alcohol.

11. From the evidences of PW.6 and PW.7, the presence of the

appellant at the scene of incident stands established and the quarrel

between the two also stands established. Further, the deceased having

fallen down on the push given by the appellant also is not in dispute,

however, PW.7 in her cross-examination has admitted the fact that it

was the deceased who have first assaulted the appellant and it was

retaliation on the part of the appellant which resulted in head injuries.

12. In the aforesaid admitted factual matrix of the case, what needs

to be appreciated is, was there really a ground available or a reason

available for the appellant to have firstly assaulted the deceased and

secondly, was the assault made with an intention of causing death of

the deceased. 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

2015 SCC Online Ker 39691

counsel also submitted that even assuming that the accused has committed any offence, it would not attract Section 302 of the IPC 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 KushaLaxmanWaghmare 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 KushaLaxmanWaghmare 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 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."

13. The Hon'ble Supreme Court in the case of Lavghanbhai

Devjibhai Vasava vs. State of Gujarat 2 laying down the basic

parameters to be considered while deciding the question as to whether

a case falls under Section 302 of IPC or under Section 304 of 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 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

(2018) 4 SCC 329

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 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."

14. Further, a three Judge Bench of the Hon'ble Supreme Court in

the case of Stalin vs. State represented by the Inspector of Police 3

in paragraph Nos.7.1, 7.1.2, 7.1.5 and 7.1.6 has held as under:

7.1. It is the case on behalf of the appellant-accused that as it is a case of single injury, Section 302 IPC shall not be attracted and the case would fall under Section 304 Part II IPC. While considering the aforesaid submission, few decisions of this Court on whether in a case of single injury, Section 302 IPC would be attracted or not are required to be referred to:

7.1.2 In Dhirajbhai GorakhbhaiNayak v. State of Gujarat [DhirajbhaiGorakhbhaiNayak v. State of Gujarat, (2003) 9 SCC 322 : 2003 SCC (Cri) 1809] , this Court while discussing the ingredients of Exception 4 of Section 300 IPC, held thus: (SCC pp. 327-28, para 11)

A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused

(a) without premeditation, (b) in a sudden fight,

(c) without the offenders having taken undue advantage or acted in a cruel or unusual manner, and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight"

occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and

(2020) 9 Supreme Court Cases 524

more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage."

7.1.5 In State of Rajasthan v. Kanhaiya Lal [State of Rajasthan v. Kanhaiya Lal, (2019) 5 SCC 639 : (2019) 2 SCC (Cri) 674] this Court in paras 7.3, held as follows: (SCC pp. 643-44)

"7.3. In Arun Raj [Arun Raj v. Union of India, (2010) 6 SCC 457 : (2010) 3 SCC (Cri) 155] this Court observed and held that there is no fixed rule that whenever a single blow is inflicted, Section 302 would not be attracted. It is observed and held by this Court in the aforesaid decision that nature of weapon used and vital part of the body where blow was struck, prove beyond reasonable doubt the intention of the accused to cause death of the deceased. It is further observed and held by this Court that once these ingredients are proved, it is irrelevant whether there was a single blow struck or multiple blows."

7.1.6. In Bavisetti Kameswara Rao [Bavisetti Kameswara Rao v. State of A.P., (2008) 15 SCC 725 : (2009) 3 SCC (Cri) 175] , this Court has observed in paras 13 and 14 as under:

(SCC pp. 729-31)

"13. It is seen that where in the murder case there is only a single injury, there is always a tendency to advance an argument that the offence would invariably be covered under Section 304 Part II IPC. The nature of offence where there is a single injury could not be decided merely on the basis of the single injury

and thus in a mechanical fashion. The nature of the offence would certainly depend upon the other attendant circumstances which would help the court to find out definitely about the intention on the part of the accused. Such attendant circumstances could be very many, they being (i) whether the act was premeditated; (ii) the nature of weapon used;

(iii) the nature of assault on the accused. This is certainly not an exhaustive list and every case has to necessarily depend upon the evidence available. As regards the user of screwdriver, the learned counsel urged that it was only an accidental use on the spur of the moment and, therefore, there could be no intention to either cause death or cause such bodily injury as would be sufficient to cause death. Merely because the screwdriver was a usual tool used by the accused in his business, it could not be as if its user would be innocuous."

15. Given the aforesaid judicial precedents and the factual matrix

that stands narrated in the preceding paragraphs, we are of the

considered opinion that the incident stands established. However,

there does not seem to be any intention or motive available for the

appellant to have assaulted the deceased with an intention of causing

his death. Thus, the conviction of the appellant under Section 302 of

IPC being not justified, stands set aside / quashed. However, the

appellant is found guilty of having committed the offence under

Section 304 Part II of IPC. Since the appellant has already undergone

incarceration for a period of more than nine years, the appellant

stands sentenced for the period already undergone. The appellant be

released from the jail forthwith if he not required in any other case.