Telangana High Court

Dudule Sanjeev, Nanded Dt, Maharashtra ... vs State Of Telangana, Rep Pp., on 22 February, 2024

Author: P.Sree Sudha

Bench: K.Lakshman, P.Sree Sudha

      THE HONOURABLE SRI JUSTICE K.LAKSHMAN
                                  AND
     THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

               CRIMINAL APPEAL No.817 of 2015

JUDGMENT:

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

This Criminal Appeal is filed against the Judgment

dated 30.07.2015 in S.C.No.318 of 2014 passed by the

learned Principal Sessions Judge, Adilabad.

2. The case of the prosecution is that appellant/accused,

D.Sanjeev, alleged to have killed his wife, Nirmala (herein

after referred as 'deceased') with a brick and thus it is alleged

that accused committed offence punishable under Section

302 of IPC. To prove the guilt of the accused prosecution

examined P.Ws.1 to 12 and marked Exs.P1 to P19 on their

behalf and also marked M.Os.1 to 11. The Trial Court after

considering the arguments of both sides and also the entire

evidence on record, convicted the accused under Section

235(2) of Cr.P.C and sentenced him to undergo life

imprisonment with a fine of Rs.1,000/-, in default to suffer

simple imprisonment for a period of three months for the

offence punishable under Section 302 of I.P.C and the period

of remand already undergone if any shall be set off under

Section 428 Cr.P.C. Aggrieved by the said judgment and

decree, accused preferred the present appeal.

3. Learned counsel for Accused mainly contended the

evidence of P.W.2 is suspicious one. As per the prosecution

the incident happened at about 6 or 7 p.m. and deceased

died at hospital at 11.30 p.m. but the complaint was given to

the police at 10.00 a.m., as such, there was a delay of more

than 7 hours in lodging the complaint. P.W.1 did not record

dying declaration of the deceased since no Magistrate turned

up for recording the same though there was sufficient time

between her admission in the hospital and her death.

Therefore, requested this Court to set aside the judgment.

4. Heard arguments on both sides and perused the entire

evidence on record.

5. As per the complaint given by P.W.1, Shaik Muneer,

who was running brick business, he stated that on

01.06.2014, at about 7.30 P.M., one Narayana of Thandra

Village informed him over the phone that at about 7.00 P.M.,

the accused who was working in his bricks manufacturing

unit beat his wife with bricks over her head suspecting her

character and she received bleeding injuries. On such

information, he rushed to that place and called an ambulance

and shifted her to Government Hospital and while undergoing

treatment, she succumbed to the injuries on the same day at

11.30 P.M. As such, he requested the police to take

necessary action against the accused for killing his wife.

6. Basing on the complaint given by P.W.1, before the

police under Ex.P1, and after the investigation, a case in

Crime No.92 of 2014 was registered under Section 302 of IPC.

7. P.W.1 is the owner of the Brick Batti which is situated

in the outskirts of Thandra Village. The accused and the

deceased worked in his brick batti and they stayed in a hut

near the batti. P.W.2 also resides in a hut nearby batti. He

stated that the accused was suspecting the character of his

wife and used to quarrel and beat her. On the date of the

offence, at about 07.00 P.M., he received a phone call from

P.W.4, Narayana informing that there was a quarrel between

accused and his wife and accused beat his wife with a brick

and caused head injury. He saw the deceased with a

bleeding injury on her head and he called ambulance and

shifted her to Government Hospital, Nirmal. On the same

night, she died in the hospital and on next morning, he gave

complaint under Ex.P1 to the police and it was drafted by one

Bhumesh. It was suggested to him that the relatives of the

deceased lodged a complaint against him with the labour

officer and he denied it. It was suggested to him that the

relatives demanded for compensation, to avoid the same he

filed the complaint against the accused and he denied it.

8. P.W.2 is resident of Gandversa of Mahor Taluqa of

Maharashtra. He worked in P.W.1's brick batti at Thandra

village. He stated that accused and his wife also worked in

the same batti and all the labour including P.W.2 lived in the

huts raised near batti. He stated that accused was

suspecting the character of his wife and used to quarrel with

her and beat her. On the date of offence in between 6 or 7

P.M., the accused quarreled with his wife and beat her.

When he was in his hut, the deceased came to him and

sought help and at that time, the accused came there and

beat her with brick on her head and face and she sustained

bleeding injury and fell down and he ran into the village as he

was afraid of the accused. He informed the incident to L.W.4,

Narayana and the villagers and L.W.4 informed to P.W.1 over

the phone and all of them came to the spot and found the

deceased with the bleeding injuries and P.W.1 called an

ambulance and thereafter she was shifted to Government

Hospital, Nirmal. On the same night at 10 or 11.00 P.M., she

died in the hospital. He stated that there are seven huts near

the brick batti. It was suggested to him that after completing

the work, he took liquor and slept and he does not know

what happened thereafter and he denied the same. It was

also suggested to him that the accused went into the village

and by the time he returned he found his wife with bleeding

injuries and he came to him and informed the same and then

both of them went to the house of P.W.1 and informed the

incident and he denied it. It was suggested to him that some

unknown persons killed the deceased and himself, P.W.1 and

others colluded and foisted the case against the accused and

he denied it.

9. P.W.3 is a resident of Thandra Village of Kadam Mandal

and scribe of Ex.P1. He stated that P.Ws.1 and 2 came to

him and P.W.2 gave information in Marathi about the offence

and it was translated by P.W.1 and accordingly he drafted it.

10. P.W.4 is also a resident of Thandra Village of Kaddam

Mandal and he does hotel business. He stated that P.W.2

came to him and informed about the incident that accused

and his wife had a quarrel as the accused suspected the

character of his wife and accused beat his wife with a brick

on her head and thereby she sustained bleeding injuries.

Both P.W.2 and 4 went to the scene of offence and found the

deceased with bleeding injury on her head and P.W.4

informed the incident to P.W.1.

11. P.W.5 is a photographer. He stated that at request of

S.I of Police, he went to the brick batti in the outskirts of

Thandra village and took the photographs of the scene of

offence under Exs.P2 to P5 and thereafter went to the

Government Hospital, Nirmal and took the photographs of

the dead body of the deceased under Exs.P6 to P11. He

handed over Exs.P2 to P11 and P12/CD to the police.

12. P.W.6 is Tahsildar of Boinpally Mandal, Karimnagar

District. He stated that on 02.06.2014, he received a

requisition of CI of Police of Nirmal Rural with a request to

conduct inquest over the dead body of the deceased. He

proceeded to Government Hospital along with L.Ws.9 and 10

and conducted inquest over the dead body of the deceased.

Ex.P13 is the inquest panchanama. He stated that they

requested the doctor for preserving the clothes of the

deceased after completion of postmortem examination.

13. P.W.7 is panch witness for scene of offence and seizure

panchanama and also inquest panchanama. Ex.P14 is the

CDF and Ex.P15 is rough sketch.

14. P.W.8 is panch witness for confession panchanama

seizure of the blood stained clothes from the accused.

Ex.P16 is the admissible portion in the panchanama. It was

suggested to him that he was not present at the time of

alleged confession and he denied it.

15. P.W.9 is sister of the deceased. She stated that on

receiving of information over the phone from P.W.1 about the

death of the deceased, she along with her cousin brother

went to Government Hospital, Nirmal and saw the dead body

of the deceased with bleeding injuries over head and face.

She stated that accused and her sister were living together

and were attending the labour work in brick batti and there

were disputes between them and she does not know the

reason for the disputes. She further stated that her sister

married another person prior to living with the accused and

she lived with her husband for three months and after three

months her sister started living with the accused and left

with him. It was suggested that P.W.1 informed that they

were not aware who killed the deceased and therefore he will

not pay the compensation and she denied it.

16. P.W.10 is S.I of Police. He stated that he received

complaint Ex.P1 from P.W.1 and he registered the same as

Cr.No.92 of 2014 under Section 302 IPC. It was suggested to

him that on 01.06.2014 at 07.30 P.M., P.Ws.1 and 2

informed him over phone that some unknown persons killed

the deceased, and he denied it. He stated that P.W.1 came

alone to the police station and he did not record the

statement of P.W.1.

17. P.W.11 is Civil Assistant Surgeon, who conducted

autopsy over the dead body and he found 13 injuries and

stated that injuries might have been caused with blunt

object. He also stated that the cause of death is due to intra

cranial bleeding due poly-trauma bleeding to cardio

pulmonary arrest. He further stated that at the request of

the Tahsildar, he had collected the blood stained clothes of

the deceased and handed over the same to the police.

18. P.W.12 is C.I of Police, who received C.D. file from

P.W.10 and took up investigation. He visited the scene of

offence at about 08.00 A.M., in the morning and he was at

the scene approximately for 1 ½ hour. He stated that there

was no out post in the Government Hospital, Nirmal. It was

suggested that he has not conducted investigation properly

and that the accused is falsely implicated and he denied the

same.

19. As per the case of prosecution, deceased received a

phone call from the phone of the accused, and as such, he

developed suspicion against her character and beat her with

a brick. She came out and informed the same to P.W.2 and

accused also came there and beat her with brick on her face

and she fell down with bleeding injuries. P.W.2 is an eye

witness to the occurrence. The Trial Court observed that

accused was intended to kill his wife as such he beat her with

brick and caused multiple injuries and found guilty for the

offence under Section 302 of IPC.

20. Learned counsel for accused contended that when the

deceased received a phone call from unknown person, on

suspicion he picked up a quarrel with the deceased and beat

her with brick. Due to the injuries sustained by her, she died

on the same day at 11.00 P.M. He further contended that it

clearly amounts to the offence under Section 304 Part-II of

IPC which is a lesser offence and it is for the Court to see the

manner of the offence and on which part of the body the

injury was caused and other circumstances while imposing

offence under Section 302 IPC.

21. As per the medical evidence, she sustained 13 injuries,

in which 7 are laceration wounds, 5 are fractures and lost

upper teeth.

22. Learned counsel for accused relied upon a decision

rendered by the Hon'ble High Court of Bombay (Nagpur

Bench) between Jayandra @ Devendra Vs State of

Maharashtra 1, in which the deceased sustained 17 injuries

and the death took place due to the injuries on vital organs.

In the said case, it was observed that accused assaulted with

stick, as such it cannot be presumed that he has intention to

2013 (4) AIRBomR 1099

cause the death though there are several injuries on the body

of the deceased and accordingly convicted the accused for

offence under Section 304-I IPC.

23. In this case, P.W.10 denied in the cross-examination

that P.Ws.1 and 2 informed him over the phone that some

unknown persons killed the deceased. He stated that P.W.1

came to the police station and gave complaint, which was

drafted by P.W.3. P.W.2 clearly stated that accused beat his

wife with brick. She came out of their hut and even then also

accused came there and beat her with brick on her head and

face, as such she sustained bleeding injury and she fell

down. P.W.2 ran into the village and informed the same to

P.W.4 and he in turn called P.W.1 on phone and he informed

about the incident.

24. The accused beat his wife on suspicion and in a fit of

anger and on grave and sudden provocation. The Apex Court

in Pulicherla Nagaraju @ Nagaraja Reddy vs State of

Andhra Pradesh 2, held as under:

"Therefore, the court should proceed to decide the pivotal question of intention, with care and caution,

AIR 2006 SC 3010

as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part ll. Many petty or insignificant matters - plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a

stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances reference to individual cases which may throw light on the question of intention. Be that as it may."

25. In the present case, the accused and deceased were

living for the past 3 ½ years. When she received a phone call

from unknown person, he suspected her and picked up

quarrel with her and also beat her with brick and caused

multiple injuries. When she fell down, she was shifted to

hospital and he went along with her to the hospital. After

knowing that the deceased died, accused ran away from his

place. It clearly shows that he has no intention to kill her.

Therefore, this case falls under Section 304 Part-II.

26. The accused herein have completed 7 ½ years of

sentence. Therefore, this Court finds that it is just and

reasonable to modify the sentence as the period already