Telangana High Court

Peddagadda Bapu,Chinna Bapu vs State Of Telangana on 3 June, 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.439 of 2020

JUDGMENT:

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

The instant appeal was listed for consideration on Interlocutory

Application No.1 of 2024 which is an application for suspension of

sentence and grant of bail. Considering the arguments that was

advanced on behalf of the learned counsel for the appellant and by

the learned Public Prosecutor, we were of the considered opinion that

the matter itself could be finally decided rather than hearing the

application for suspension of sentence and grant of bail.

2. Heard Mr. S. Madan Mohan Rao, learned counsel for the

appellant/accused and the learned Public Prosecutor appearing for

the respondent/State.

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

Procedure Code, 1973 is filed by the appellant/accused challenging

the judgment of conviction dated 20.11.2019 passed by the VI

Additional District and Sessions Judge at Godavarikhani (for short,

the 'Trial Court') in Sessions Case No.225 of 2017 in which the

appellant/accused was found guilty and stood convicted for the

offence punishable under Section 302 of Indian Penal Code, 1860

(for short, 'IPC'). He was sentenced to undergo rigorous

imprisonment for life and also to pay a fine of Rs.5,000/- and further

in default to suffer imprisonment for a period of two (02) months.

4. The case of the prosecution in brief is that the

appellant/accused is relative of the Peddagadda Bapu (hereinafter

the 'deceased') and the complainant PW.1 (Peddagadda Kittaka) is

the wife of the deceased. As per the prosecution case, the deceased

and the appellant/accused along with two other persons Peddi

Sadavali and Thatimakula Ramesh on 24.11.2015 laid a trap for

hunting of wild animals in the forest with the aid of clutch wires, and

as a result of the trap, a wild sheep got trapped. Since the deceased

was absent from the place, the appellant/accused and the other two

persons distributed the meat of the wild sheep in between three

persons without giving any share to the deceased. Upon knowing the

fact, the deceased went to the appellant/accused and asked for his

share which was denied by the appellant/accused. It is said that the

deceased thereafter used filthy language against the appellant/

accused and abused him and he went away.

5. On 25.11.2015, at around 5:30 PM, the appellant/accused is

said to have went to the house of the deceased and abused him and

also tried to beat the deceased. When the deceased tried to run away

from the house, the appellant/accused caught him in front of the

house and picked up a cart peg and hit him on his head, forehead

and back resulting in grievous injuries upon the vital part of the

body of the deceased and he collapsed on the ground.

6. PWs.1 and 3 are said to have intervened and requested the

accused not to further assault the deceased. Thereupon the

appellant/accused fled away from the scene. PW.1 along with the aid

of other villagers, PWs. 2, 4 and LW.8 arranged an auto and took the

deceased to the Government Hospital at Mahadevpur, however,

enroute the deceased succumbed to the injuries. Subsequently, PW.1

visited the Police Station, Mahadevpur and reported the matter

basing upon which a crime was registered and the matter was in due

course of time put to trial before the Trial Court. In all, the

prosecution examined nineteen (19) witnesses and no witnesses were

examined on behalf of the defence. Later on, the statement of the

appellant/accused under Section 313 Cr.P.C was also recorded and

vide the impugned judgment, the Trial Court found the appellant/

accused guilty of causing grievous injuries to the deceased on vital

part of the body resulting in his death and thereby convicted the

appellant/accused to undergo rigorous imprisonment for life with

fine of Rs.5,000/- and with default stipulation.

7. It is this judgment of conviction which is under challenge in the

present Criminal Appeal.

8. Referring to the facts of the case, learned counsel for the

appellant argued that from the narrataion of the facts as is reflected

from the prosecution case itself, there appears to be no animosity

between the appellant and the deceased. On the other hand, it

would reveal that the deceased and the appellant and others all were

well known to each other and were good friends and it was in that

context they had all gone to lay trap in the jungle to catch wild

sheep. According to the learned counsel for the appellant, the

narration of facts would also go to show that there was no pre-

meditation on the part of the appellant and that the quarrel between

the appellant and the deceased took place only on a trivial issue of

non-sharing of the meat of the wild sheep which was otherwise

shared by the others who had gone for the hunt. This itself is,

according to learned counsel for the appellant, a sufficient indication

that there was no premeditation or a predetermined mind on the part

of the appellant to kill or murder the deceased, but as the quarrel

between the two, i.e., the appellant and the deceased, had

aggravated and as there was heated argument in a filthy language on

either side, and in a fit of rage the appellant picked up a cart-peg

and hit the deceased. According to learned counsel for the appellant,

since the appellant hit the deceased with a cart-peg and the blow fell

on the head causing grievous injuries to which the deceased later

succumbed. This again, according to learned counsel for the

appellant, is a strong indication of the case against the appellant not

being made out for an offence under Section 302 of the I.P.C. that of

culpable homicide, amounting to murder. He further contended that

since the appellant has already suffered incarceration for a period of

little less than five (05) years, the appellant's conviction can be one

which can be converted from Section 302 to Section 304 Part-II and

the period of incarceration may be treated as sentence period for the

said offence under Section 304 Part-II.

9. Per contra, the learned Additional Public Prosecutor appearing

for the respondent-State, opposing the appeal, referred to the

evidence of PWs.1 and 3, all of whom have categorically submitted

that there is sufficient evidence to show that it was the appellant

who was the aggravator and that he had gone to the house of the

deceased and picked up quarrel and assaulted the deceased with a

cart-peg on the head which is otherwise a vital part of the body, and

therefore, the Trial Court has rightly convicted the appellant for the

offence under Section 302. She further contended that it is a case

where the appellant had repeatedly hit the deceased on the head

which further goes to establish that he had a clear intention of killing

the deceased and ensuring that he does not survive; and for this

reason also, the conviction does not warrant interference.

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

perusal of the record, particularly the evidences which have come on

record more particularly the evidences of PWs.1 and 3, the case of

the prosecution to the extent that there was no animosity on the part

of the appellant with the deceased prior to 24.11.2015, stands

established. The relationship between the appellant and the

deceased prior to 24.11.2015 was very cordial, also stands

established by their conduct itself when both of them along with two

more persons of the same village and neighbourhood had decided to

lay a trap to catch wild sheep in the forest. It appears that though

they had planned to lay a trap together but after laying of the trap,

the deceased is said to have gone back leaving behind the other three

people in search of the hunt and when they got the trap, the meat

was not shared with the deceased which infuriated the deceased.

Therefore, the deceased went to the house of the appellant and

picked up a quarrel using filthy language and left the house of the

deceased. When the deceased went to the house of the appellant

again, the deceased picked up a quarrel on the same issue and in

the course of quarrel which turned into a physical fight, the

appellant is said to have picked up a cart-peg and assaulted the

deceased.

11. It is not the case of the prosecution nor was it stated by any of

the witnesses that the appellant went to the house of the deceased

along with cart-peg / cart-stick to be used as a weapon to assault

the deceased. On the other hand, it appears that the appellant

picked up the cart-peg which was lying in the house of the deceased

in the course of fight. The aforesaid factual backdrop itself gives us

a strong indication that there was no indication on the part of the

appellant to kill the deceased. Further what is also evident is that

the fight between the appellant and the deceased took place for a

trivial issue of sharing of the meat of the wild sheep which they got

the previous night after laying trap in the jungle. It is in this context

that it becomes necessary to consider whether the above act on the

part of the appellant in assaulting the deceased first and secondly

the injuries which led to death later, would come within the purview

of Section 302 of I.P.C. or not. A perusal of the post-mortem report

would show that there were four injuries which were detected on the

body of the deceased, viz., (1) laceration of size 1.5 cm. x 6 c.m. on

the left frontal region of head and hematoma is seen in left frontal

lobe of head; (2) laceration of size 7 x 2 x 1 c.m. on right parieto

occipital region of head and blood clot is seen in parietal lobe

extending into occipital lobe. Fracture of skull bone in right parieto

occipital region of size 14 x 6 c.m.; (3) bluish discoloration of left

upper eye lid is present; and (4) contusion mark of size 13 x 3 c.m. is

seen below right scapula.

12. A plain reading of the aforesaid four injuries would reveal that

injury Nos.1 and 2 are the only two injuries which the deceased

suffered on the left side of the forehead and also on the right parieto

occipital region of the head. The other two injuries were incidental

injuries and were not on account of separate blows but were as a

result of the first two injuries. This again would show that in fact

there was only two major blows given by the appellant on the

deceased.

13. Taking into consideration the aforesaid legal precedents and

which have since been followed by practically every High Court in

such similar cases where the assault is on account of a dispute

which arose for a trivial issue and which got aggravated into a fit of

fury and anger, the accused assaulted the deceased with one or two

blows which incidentally landed on the vital part of the body

resulting in death.

14. 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 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

2015 SCC Online Ker 39691

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."

15. 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 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;

(2018) 4 SCC 329

(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."

16. Similar are the facts in the instant case as well, i.e., those

which are narrated in the preceding paragraphs. Thus, we have no

hesitation in reaching to the conclusion that the conviction of the

appellant under Section 302 of I.P.C. is not proper, legal and justified

and in fact, the appellant is guilty of having committed the offence

under Section 304 Part II, i.e., culpable homicide not amounting to

murder and he stands convicted for the said offence.

17. Therefore, it is accordingly ordered that the appeal stands

partly allowed to the extent that the conviction under Section 302

stands set aside. However, the appellant stands convicted for the

offence under Section 304 Part-II. However, as regards the sentence

is concerned, considering the fact that the appellant had only