Telangana High Court

Md. Shafiuddin, Warangal vs State Of Telangana, Rep. By P.P. 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.91 of 2015

JUDGMENT:

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

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 23.01.2015 passed by the Principal

Sessions Judge, Warangal (for short, the 'Trial Court') in Sessions

Case No.268 of 2014.

2. Heard Mr. T.S. Anirudh 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/accused guilty of a charge under Section 302 of Indian

Penal Code, 1860 (for short, 'IPC') and upon conviction had ordered

to undergo imprisonment for life with a fine of Rs.5,000/- and in

default to suffer simple imprisonment for three (03) months.

4. The facts of the case in brief are that the deceased in the

instant case is Md. Javeed Khan who used to run a Call Centre at

Humayun Nagar, Hyderabad. The appellant/accused is said to have

been engaged by the deceased on a monthly salary of Rs.50,000/-.

After some time, it is said that the appellant/accused had borrowed

an amount of Rs.50,000/- from the deceased and left to his

hometown Warangal where his wife is said to be ill. When he went to

his hometown, he had taken along with him a laptop and computer

belonging to the deceased and thereafter the appellant/accused is

said to have not returned back to work and remained at Warangal.

The deceased had been contacting the appellant/accused for refund

of the loan amount that he had taken and the appellant/accused

had been repeatedly differing the payment assuring of clearing the

dues later on and kept on delaying it on one pretext or the other.

5. It is said that on 17.10.2013 at around 7:00 P.M., the deceased

went to the house of the appellant/accused demanding for

repayment of the loan amount, but the appellant/accused went

inside the house, brought out kitchen knife and stabbed the

deceased at the chest after picking up a quarrel in front of his house,

on the road. Meanwhile, PWs.3 and 4 reached the scene of

occurrence and separated the appellant/accused and the deceased.

The deceased was immediately taken in an auto-rickshaw to M.G.M.

Hospital, Warangal, where he was declared dead due to the stab

injury. It is PW.3(Md. Irfan) who had informed PW.1 (Md. Ghouse

Khan) who subsequently after visiting the M.G.M. Hospital,

Warangal, lodged a complaint at Matwada Police Station at around

10:00 P.M which was registered as Cr.No.268 of 2014 and an offence

under Section 302 of IPC was registered against the appellant/

accused. PW.11, the Doctor, conducted the autopsy and opined the

cause of death was the stab injury on the chest of the deceased. In

the course of investigation, the appellant/accused was arrested on

25.10.2013 from his house and the Samsung laptop, Mercury CPU,

Samsung monitor of 21 inches as well as the kitchen knife were

seized from his house.

6. The matter was thereafter subjected to trial vide Sessions Case

No.268 of 2014. In the course of trial, the prosecution examined as

many as thirteen (13) witnesses and no witnesses were examined in

defence. Subsequently, after recording the statement of the

appellant/accused under Section 313 of Cr.P.C, the impugned

judgment was passed where the Trial Court found the

appellant/accused guilty of the offence under Section 302 of IPC and

sentenced him with fine as is reflected in the initial part of this

judgment.

7. The postmortem report in the instant case is Ex. P8 where the

cause of death is said to be the stab injury on the chest which is

4cm× 2cm × 6cm deep.

8. Learned counsel for the appellant contended that 17.10.2013

i.e. the date of incident was a festive day for the appellant/accused

as it was the day of Bakrid and the appellant/accused was at his

house on the said day. It was the deceased who had gone to the

house of the appellant/accused and picked up a quarrel/fight and

which ultimately resulted in the appellant/accused stabbing the

deceased on his chest. Referring to the whole incident, it was also

contended that there was no motive or intention on the part of the

appellant/accused to kill the deceased.

9. It was also contended by the learned counsel for the appellant

that the entire narration of facts would reveal that there was no pre-

medication or a pre-determined approach on the part of the

appellant/accusedfor the incident to have arisen. It was further

contended that there is no material collected firstlyto establish the

fact that the recovered items like the Samsung laptop, Mercury CPU,

Samsung monitor of 21 inches etc. were the same oneswhich were

said to have been picked up by the appellant/accused from the office

of the deceased. In the absence of which, the recovery of Samsung

laptop, Mercury CPU so also the Samsung monitor of 21 inches is of

no relevance.

10. It was also the contention of the learned counsel for the

appellant that there is no proof available on record to establish the

fact that the appellant/accused going inside the house and then

picking up the knife and assaulting the deceased which further

weaken the case of the prosecution so far as the motive, intention or

pre-meditation on the part of the appellant/accused and all the

material witnesses have turned hostile and have not supported the

case of the prosecution. It was also the contention that the

postmortem report in itself would reveal that there was only one

injury on the body of the deceased.

11. Learned counsel for the appellant submits that all these would

sufficiently prove that there was no motive/intention on the part of

the appellant/accused and thus, the offence under Section 302 of

IPC is not made out. Therefore, the impugned judgment of conviction

to the aforesaid extent deserves to be set-aside/quashed. Similarly, it

was also the contention of the learned counsel for the appellant that

the discrepancies of the knife said to have been seized from the

house of the appellant/accused also was not recorded and the

Forensic Science Laboratory (FSL) report also does not talk about the

dimensions of the knife. Thus, it is difficult to hold that the same

knife which is recovered from house of the appellant/accused was

the weapon used in assaulting the deceased.

12. Lastly, it was contended by the learned counsel for the

appellant that from the reading of the prosecution witnesses there

does not seem to be any strong proof of the appellant/accused

carrying the knife, the possibility of the deceased having come to the

house for recovery of the loan amount and the possibility of the knife

having accidentally hit the deceased in the chest in the course of

scuffle between the two also cannot be ruled out.

13. Thus, for all the aforesaid reasons, the learned counsel for the

appellant prayed for setting aside the impugned judgment of

conviction and prayed for acquittal of the appellant/accused.

14. Per contra, the learned Public Prosecutor referring to the

evidences of PWs.1, 3 and 4 contended that there was ample proof of

the prosecution case being established. Similarly, the learned Public

Prosecutor referred to the evidence of PW.6 who is one of the persons

who reached the spot immediately after the incident and have

supported the case of prosecution and from the evidence of PW.11,

the Doctor who conducted the autopsy, it would be established that

the deceased died because of the stab injury. That except one stab

injury there was no other external injuries available, nor was there

any injury or injuries the cause of death. Thus, the learned Public

Prosecutor prayed for dismissal of the instant appeal as the case of

the prosecution stands proved beyond all reasonable doubts, and

therefore, the impugned judgment of conviction does not warrant any

interference affirming the same.

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

perusal of records, certain factual matrix which needs appreciation is

that:

I. The date of incident is 17.10.2013 which was the day of festival

of Bakrid and the place of incident is the front of the house of

the appellant/accused. The deceased stays somewhere in

Hyderabad. Therefore, it is established that, it is the deceased

who had gone to the house of the appellant/accused and

thereafter the fight took place.

II. There was only one stab injury found the chest of the deceased

measuring 4cm × 2cm × 6cm. Apart from the said one injury,

there was no other injury whatsoever detected, nor was any

other injury the real cause of death of the deceased.

16. The fact that there was no motive or intention on the part of

the appellant/accused in killing the deceased gets fortified from the

facts that it was the deceased who had gone to the house of the

appellant/accused and not the appellant/accused who had gone for

assault. There was no omission, contradiction or improvement found

in the depositions of PWs.3, 4 and 6. Neither was there any strong

discrepancies elicited in the cross-examination so as to disprove the

evidence of these witnesses. The statement of PWs.3, 4 and 6 stands

further fortified from the evidence of PW.1, the brother of the

deceased, who had reached the spot immediately after the incident

had occurred.

17. From the overall evidences that have been collected, there does

not seem to be any dispute so far as the scuffle that took place on

17.10.2023 between the appellant/accused and the deceased. There

is also no dispute that it was the deceased who had come to the

appellant/accused and there was an altercation, scuffle and fight

which followed and there is also no dispute of the fact that it was the

stab injury received at the hands of the appellant/accused that the

deceased had collapsed and died. It is also an admitted fact that it

was only a case of single stab and that there were no other injuries

whatsoever found on the body of the deceased.

18. In the given factual matrix of the case, we are of the considered

opinion that, prima facie, it is difficult to bring the aforesaid incident

within the purview of an offence under Section 302 of IPC i.e.

culpable homicide amounting to murder. Rather when we look into

the provisions of Section 304 Part II of IPC, it would be more

appropriate in our opinion that the factual matrix forces us to

conclude that, in fact, it is a case which otherwise falls within the

purview of culpable homicide not amounting to murder and it is

Section 304 Part II of IPC which would be attracted in the instant

case rather than Section 302 of IPC.

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

few 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 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

2015 SCC Online Ker 39691

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."

20. 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 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 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;

(2018) 4 SCC 329

(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."

21. 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

(2020) 9 Supreme Court Cases 524

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 DhirajbhaiGorakhbhaiNayak 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 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 BavisettiKameswara Rao [BavisettiKameswara 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."

22. In the light of the aforesaid judicial precedents in the past

which has been reiterated in numerous decisions of practically every

High Court in such similar circumstances; we are also of the firm

view,firstly, for the reason that there was only one solitary injury on

the body of the deceased. Secondly, the place of incident was the

house of the appellant/accused where the deceased had come and

picked up a quarrel and fight with the appellant/accused and

thirdly, there was no established motive or intentionon the part of

the appellant/accused to eliminate or kill the deceased. Thus, in the

light of the judgments quoted above, the conviction of the

appellant/accused under Section 302 of IPC awarded by the Trial

Court is not proper, legal and justified and the same warrants

interference. It is ordered accordingly.

23. The impugned judgment of conviction under Section 302 of IPC

is therefore set aside/quashed. However, the appellant/accused is

found guilty of having committed the offence under Section 304 Part

IIof IPC. The appellant/accused in the instant case has remained in

custody for a period of nine (09) years, eleven (11) months and

twenty two (22) days. Therefore, we are of the considered opinion

that the period of incarceration undergone is sufficient for the

appellant/accused for the said offence. Thus, the appellant/accused

stands convicted for the offence under Section 304 Part II of IPC and

the sentence is reduced for the period already undergone.