Sayyad Zaheeruddin vs The State Of Telangana
2024 Latest Caselaw 2176 Tel

Telangana High Court

Sayyad Zaheeruddin vs The State Of Telangana on 11 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.1053 of 2014

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 assailing the judgment of conviction dated

20.08.2014 passed by the I Additional Sessions Judge at Nizamabad

(for short, the 'Trial Court') in S.C.No.208 of 2012.

2. Heard Ms. C. Vasundhara Reddy, learned counsel for the

appellant and the learned Public Prosecutor appearing for the

respondent - State.

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

appellant guilty of the offence under Section 302 of the Indian Penal

Code, 1860 (for short, 'IPC') and sentenced him to undergo

imprisonment for life with minimum of twenty (20) years without

remission and to pay fine of Rs.5,000/-, in default, of which further

simple imprisonment for one (01) month.

4. The facts in brief for relevant for adjudication of the instant

appeal are that the appellant is said to be alcoholic. He used to come

home drunken everyday and pick up quarrel with his wife namely

Naseem Sulthana @ Firdos (hereinafter, the 'deceased'). There were

also complaints of him assaulting the deceased frequently under the

influence of alcoholic condition. In the year 2000, he got shifted to a

village known as Armoor and had taken house on rent at

Husnabadgally. On the intervening night of 06 and 07.12.2011, at

midnight, the appellant picked up a quarrel with the deceased in

drunken condition and in the course of quarrel with the deceased, it

is said that the deceased kicked him on his testicles on account of

which he fell down. Subsequently, he got enraged and infuriatedon

the conduct of the deceased and with the help of chunni

strangulated her to death.

5. PW.13 (S. Laxminarayana, Inspector) filed the charge-sheet

before the Trial Court where the case was registered as S.C.No.208 of

2012. The prosecution in all examined thirteen (13) witnesses. In

turn, the defence examined three (03) witnesses. Later on, the

statement of the appellant was recorded under Section 313 of Cr.P.C

and vide the impugned judgment, the appellant was found guilty for

the offence under Section 302 of IPC and was sentenced for the

period with fine as already mentioned in the earlier paragraphs of

this judgment.

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

instant Criminal Appeal.

7. Learned counsel for the appellant assailing the impugned

judgment contended that the prosecution has not been able to prove

its case beyond reasonable doubt and it was alleged that there was

great discrepancy with regard to the oral and medical evidence that

was produced before the Trial Court. It was also contended that the

medical evidence suggesting death of the deceased was homicidal

itself is incorrect. Rather, according to the learned counsel for the

appellant, it was a case of suicide by the deceased herself and which

is subsequently been twisted by the prosecution and made it appear

to be a case under Section 302 of IPC.

8. According to the learned counsel for the appellant the

evidences and the indications that are reflected from the dead body

of the deceased clearly indicate it to be a case of suicide and that the

ingredients of it to be a case of murder was not available atleast from

the postmortem report. Therefore, the entire finding of guilt so far as

the offence under Section 302 of IPC gets vitiated. According to the

learned counsel for the appellant there were large number of

contradictions and omissions in the statement of the prosecution

witnesses, particularly, in respect of the place of incident.

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

appellant that the finding of PW.9, the Doctor, who conducted the

postmortem, reflects that the mouth and eyes of the deceased were

all normal; however, in the oral evidences the witnesses have stated

that the tongue of the deceased was protruded from the mouth.

Thus, there is clear contradiction in the finding of the prosecution

which makes the case of the prosecution suspicious and doubtful. It

was further contended that from reading of the evidences, what is

also reflected is that, it is a case where the investigation in the

aforesaid case had started even prior to the registration of the First

Information Report and as such the prosecution story becomes

highly doubtful.

10. Learned counsel for the appellant also stressed hard on the

ground that PW.2 (Syed Anasuddin) who is a child witness does not

appear to be an eye witness and also the fact that he was not present

in the house at the time of incident as would be evident from the

evidence of other witnesses examined. As such, he appears to be a

planted witness at the behest of the family members of the deceased.

11. Learned counsel for the appellant further contended that on

the date of incident, in fact, the appellant had not gone to his house

at all because of certain extra work in his shop and had to stay back

at his shop which he usually does as and when there was extra work

in his shop. Thus, it is a fit case where the prosecution has

implicated the appellant to convict him under Section 302 of IPC.

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

appellant that from the evidence which has come on record, it also

appears that it was the deceased who had kicked the appellant on

his testicles on account of which he fell down and when he got up

enraged in anger and in the fit of fury, he pressed the chunni around

her neck hard which resulted in death of the deceased. As such,

there was no pre-determined or a pre-mediated act on the part of the

appellant to kill the deceased. Therefore, the offence under Section

302 of IPC definitely is not made out and it is a fit case where the

appellant could be convicted only under Section 304 Part I of IPC.

13. Per contra, the learned Public Prosecutor opposing the appeal

submits that all the contentions put forth by the learned counsel for

the appellant does not have sufficient force. Inasmuch as the plain

perusal of the evidences which have come on record on behalf of the

prosecution itself would show that it has been able to prove its case

beyond all reasonable doubts. The learned Public Prosecutor

referring to the deposition of PW.2 contended that it gives a clear

indication of the actual factual matrix of the case as it transpired on

the date of incident and further contended that there is no reason to

disbelieve the version of PW.2 particularly for the reason that in fact

he was the son of the appellant and deceased and he would not have

made a false statement to implicate his father.

14. It was further contended by the learned Public Prosecutor that

the other evidences who have been examined also corroborate the

evidence of PW.2 which further strengthens the case of the

prosecution. The postmortem report also gives a clear indication of

the death of the deceased being by way of strangulation and that

there is no scope of interference with the impugned judgment of

conviction under Section 302 of IPC, as it a case where the

prosecution has established its case by oral and documentary

evidences, coupled with the evidence of eye witness. As such, the

entire case of the prosecution stands established beyond all

reasonable doubts and prayed for dismissal of the appeal.

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

perusal of records, in the opinion of this Court, it would be relevant

at this juncture to take note of the evidences which have come on

record. First, let us take note of the evidence of PW.2, the son of the

appellant and the deceased aged around 8½ years. In his

examination in chief he has narrated the incident as under:

"On 6-12-2011 after supper we went for sleep. I heard cries (Cheeka). I woke up. My mother kicked my father on his testicles. My father fell down. He got up and sat. My mother also sat. My father put Odni around the neck of my mother and strangulated her. My mother's tongue protruded from her mouth and she moved her legs vigorously. Later my father left the house. Subsequently, our landlord Khairunnisa Begum came. My mother did not get up. On the next day morning, PW 1 and my maternal grand mother came. The police examined me and recorded my statement."

16. PW.1 was informed about the incident by the local people and

on intimation, he and his mother reach the house of the appellant in

the morning and he was informed about the incident by PW.2 on the

basis of which he had lodged the complaint Ex.P1 before the police

authorities. The same is the version given by PW.3, the mother of the

deceased as also the mother of PW.1. She also reiterated the fact that

she had reached in the morning to the house of the appellant. They

found the deceased killed by way strangulation and that PW.2

narrated the entire incident where he had stated that the appellant,

his father had strangulated the deceased, his mother to death after a

quarrel that took place on the midnight.

17. From the deposition of PW.8, it appears that in the year 2000,

there was again a dispute in the matrimonial life of the appellant and

the deceased and subsequently there was also a settlement arrived

at in between them. A panchayat meeting was also called for

settlement which was duly signed by the parties and the deceased in

the said case had tendered apology for her conduct and she has also

undertaken to live cordially with the appellant without giving rise to

any further disputes. Further, from the deposition of PW.9, who had

conducted the autopsy, it has been clearly opined by him that the

cause of death was due to asphyxia as a result of strangulation.

PW.9 also specifically has clarified that the signs and symptoms that

were available on the body of the deceased does not make it a case of

death by way of suicide, rather it is more because of strangulation.

The opinion of PW.9 was based upon his study in terms of Modi's

Medical Jurisprudence and also Professor M.Narayan Reddy's book

of forensic science.

18. At the same time, what is also necessary to be taken note of, is

the statement of DW.3 (Dr. K. Ashok) a private medical practitioner

who has deposed before the Court that the appellant had taken his

wife to him for treatment. According to DW.3, the deceased was

suffering from psychosis and that he treated her by prescribing

certain medicines and that PW.3 also had suggested the appellant for

taking the deceased to a psychiatrist. If we read the statement of

PW.3 and then look at the so-called settlement, the reference of

which has come in the deposition of PW.8, the maternal aunt of the

deceased, it would reveal that the deceased has executed an

agreement on 08.01.2000 in respect of a strained relationship

between the appellant and the deceased and in the said agreement

the original of which being in Urdu language and the translated

version being in English language shows that the deceased had made

the following statement in the said agreement, which again for ready

reference is reproduced herein under:

"...on Thursday at about 10-45 p.m. a mistake has been crept by me, wherein I have abused my in-laws relatives and having beat them I went away from their house, owing to said

reasons my husband as well as my in-laws were deeply hurted, for which I beg execuse, and I hereby affirm that in near future I shall not commit such type of mistake which may cause any hurt to my in-laws."

This submission of the deceased in the said agreement dated

08.01.2000 Ex.D3 and D4 will give a slight indication as to the

nature of the deceased and that she on that incident also had beaten

the family members of the appellant.

19. Now when we look into the evidence of PW.2, the relevant

portion of which has already been reproduced in the earlier

paragraphs, it would reveal that on 06 and 07.12.2011 midnight

there was a fight that took place and PW.2 saw that the deceased,

his mother kicked the appellant, his father on his testicles on

account of which his father fell down. This statement of PW.2, the

eye witness, also would show that it was the deceased who had

kicked the appellant and it was the appellant who had retaliated

later. Thus, from the factual narration, it appears that after the

appellant was kicked on his testicles by the deceased he fell down

and after he got up, he was so much infuriated and in the fit of anger

he tightened the chunni which was around the neck of the deceased

tightly which resulted in strangulation and death of the deceased.

20. Given the said situation, the question that needs to be

considered is, "whether in the event if the deceased would not have

kicked the appellant on his testicles would he have tried to

strangulate her?" From the deposition of the witnesses it is amply

clear that the appellant is an alcoholic by nature. The appellant and

the deceased used to pick up quarrels and fights when the appellant

came home drunk. If the said incident of the deceased kicking the

appellant had not occurred, in all possibility, the night would have

ended as usual quarrel and then both the appellant and deceased

would have gone to sleep and things would have been as a matter of

routine. Other than the frequent quarrels after the appellant used to

come home drunk, there does not seem to be any serious dispute

between the appellant and the deceased. This further indicates that

the appellant as such never had an intension of killing the deceased,

neither was his act pre-meditated or pre-determined.

21. The Hon'ble Supreme Court in the case of Pardeshiram vs.

State of Madhya Pradesh 1 in paragraph Nos.5 and 6 has held as

under:

1(2021) 3 SCC 238

5. The accused is an agriculturist, and the shovel is a part of an agricultural tool that is possessed by agriculturists. The accused was attributed with the first blow with the shovel followed by a hit by a stone on the head of the deceased which was picked up from the street.

6. The accused and the deceased were from the same family. The cause of provocation was sudden, without premeditation. We find that, in the facts and circumstances of the case, it is a case falling under Exception 4 of Section 300 IPC. The injuries were inflicted without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken advantage or acted cruelly or unusually. In this view of the matter, we find that the appellant is liable to be convicted for an offence under Section 304 Part I IPC."

22. The Hon'ble Supreme Court also in the case of Stalin vs.

State 2in paragraph Nos.11 to 13 has held as under:

"11. As per Exception IV to Section 300 IPC, culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage and not having acted in a cruel or unusual manner. In the present case, at the place of incident the beer was being served; all of them who participated in the beer party were friends; the starting of the incident is narrated by PW 3, as stated hereinabove. Therefore, in the facts and circumstances, culpable homicide cannot be said to be a murder within the definition of Section 300 IPC and, therefore, in the facts and circumstances of the case narrated hereinabove and the manner in which the incident started in a beer party, we are of the opinion that Section 302 IPC shall not be attracted.

12. Now, the next question which is posed for consideration of this Court is whether the case would fall under Section 304 Part II IPC? Considering the totality of the facts and circumstances of the case and more particularly that the accused inflicted the blow with a weapon like knife and he inflicted the injury on the deceased on the vital part of the body, it is to be presumed that causing such bodily injury was likely to cause the death.

2(2020) 9 SCC 524

Therefore, the case would fall under Section 304 Part I IPC and not under Section 304 Part II IPC.

13. In view of the above and for the reasons stated above, the appeal is allowed in part. The impugned judgment [Stalin v. State, Criminal Appeal (MD) No. 122 of 2016, order dated 18-1-2017 (Mad)] and order passed by the High Court confirming the conviction of the accused for the offence punishable under Section 302 IPC is hereby modified from that of under Section 302 IPC to Section 304 Part I IPC. The accused is held guilty for the offence punishable under Section 304 Part I IPC and sentenced to undergo 8 years' RI with a fine of Rs 10,000 and, in default, to further undergo one year RI. The appeal is allowed to the aforesaid extent."

23. Further, in the case of Purna vs. State of Odisha 3, the High

Court of Odisha held at paragraph Nos.12, 14, 15, 16, 18 and 19 as

under:

12. In case of Mahesh Balmiki v. State of Madhya Pradesh, (2000) 1 SCC 319, the Apex Court while deciding the question of whether a single blow with a knife on the chest of the deceased would attract section 302 IPC, held thus:

"9..... there is no principle that in all cases of a single blow Section 302 I.P.C. is not attracted. A Single blow may, in some cases, entail conviction under Section 302 I.P.C., in some cases under Section 304 I.P.C. and in some other cases under Section 326 I.P.C. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him. In the instant case, the deceased was disabled from saving himself because he was held by the associates of the appellant who inflicted though a

32024 SCC OnLine Ori 1276

single yet a fatal blow of the description noted above. These facts clearly establish that the appellant had the intention to kill the deceased. In any event, he can safely be attributed the knowledge that the knife- blow given by him was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death."

14.In case of PulicherlaNagaraju vs. State of Andhra Pradesh 4, the Hon'ble Supreme Court while deciding whether a case falls under Section 302 or 304 Part I or 304 Part II IPC, held thus:

29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. 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,

4(2006) 11 SCC 444

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 not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention."

15. In case of SingapaguAnjaiah v. State of Andhra Pradesh, 2010 AIR OnLine SC 441, the Apex Court while deciding the question whether a blow on the skull of the deceased with a crowbar would attract Section 302 IPC, held thus:

"In our opinion, as nobody can enter into the mind of the accused, its intention has to be gathered from the weapon used, the part of the body chosen for the assault and the nature of the injuries caused. Here, the appellant had chosen a crow bar as the weapon of offence. He has further chosen a vital part of the body i.e. head for causing the injury which had caused multiple fractures of skull. This clearly shows the force with which the appellant had used the weapon. The cumulative effect of all these factors irresistibly lead to one and the only conclusion that the appellant intended to cause death of the deceased."

16. In case of State of Rajasthan through the Secretary v. Kanhaiya Lal (2019) 5 SCC 639, the Apex Court in paras 7.3, 7.4 and 7.5 held as follows:

"7.3. In Arun Raj (Supra) 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."

"7.4 In the case of Ashok kumar Magabhai Vankar (Supra), the death was caused by single blow on head of the deceased with a wooden pestle. It was found that the accused used pestle with such force that head of the deceased was broken into pieces. This

Court considered whether the case would fall under Section 302 or Exception 4 of Section 300 IPC. It is held by this Court that the injury sustained by the deceased, not only exhibits intention of the accused in causing death of victim, but also knowledge of the accused in that regard. It is further observed by this Court that such attack could be none other than for causing death of victim. It is observed that any reasonable person, with any stretch of imagination can come to conclusion that such injury on such a vital part of the body, with such a weapon, would cause death."

"7.5 A similar view is taken by this Court in the recent decision in State of Rajasthan v. Leela Ram (2019) 13 SCC 131 and after considering a catena of decisions of this Court on the issue on hand i.e. in case of a single blow, whether a case falls under section 302 or section 304 Part I or section 304 Part II, this Court reversed the judgment (Leela Ram v. State of Rajasthan, 2008 SCC OnLine Raj 945) of the High Court (in that case also the judgment impugned was from the Rajasthan High Court) and convicted the accused for the offence under section 302 of the IPC. In the same decision, this Court also considered Exception 4 of Section 300 of the IPC and observed in paragraph 21 as under:

"21. Under Exception 4, culpable homicide is not murder if the stipulations contained in that provision are fulfilled. They are : (i) that the act was committed without premeditation; (ii) that there was a sudden fight; (iii) the act must be in the heat of passion upon a sudden quarrel; and

(iv) the offender should not have taken undue advantage or acted in a cruel or unusual manner.

18. The accused and the deceased hail from rural background and are permanent residents of a village. Judicial notice of the fact can be taken that their temper usually run high and behaviour often even for silly reasons seen as abnormal and totally unexpected in a given situation.

19. Applying the law laid down in the aforesaid decisions more particularly the decisions on the aspect of single injury, to the facts and circumstances of the case as have emerged in evidence and aforediscussed, we are of the considered view that the offence could be properly categorized as one punishable under section 304 Part-I of the IPC. We are thus of the

considered opinion that for the role played and act done by the accused, he would be liable for conviction under section 304 Part-I of the IPC."

24. In the light of the aforesaid judicial precedents, taking into

consideration the entire narration of facts and the factual matrix of

the case, as has been discussed and deliberated upon in the

preceding paragraphs, we are of the firm view that had it not been

the case of the deceased kicking the appellant on his testicles the

entire incident itself would not have occurred or could had been

avoided. The deceased from the agreement Exs.D3 and D4 earlier

also had a habit of assaulting the family members of the appellant.

Thus, we are of the firm view that the case of the appellant is not

which could be brought within the purview of Section 302 of IPC as it

could be termed it to be a case where culpable homicide amounting

to murder. Rather, it is a case of culpable homicide not amounting to

murder and is one where the appellant would be guilty of having

committed an offence under Section 304 Part I of IPC. It is therefore

held that the appellant is found guilty of having committed the

offence under Section 304 Part I of IPC.

25. As regards the sentence, it is revealed that the appellant by

now has already undergone total custody for a period of 8½ years

without remission and that he was enlarged on bail recently on

29.11.2022. Therefore, we find that the period of custody already

undergone to be sufficient sentence. It is ordered accordingly. The

judgment of conviction under Section 302 of IPC is set aside.

However, the appellant having found guilty of the offence under

Section 304 Part I of IPC stands convicted for the said offence and

the sentence stands retracted to the period of custody already

undergone.

26. In the result, the Criminal Appeal stands partly allowed.No

costs.

27. As a sequel, miscellaneous applications pending if any, shall

stand closed.

__________________ P.SAM KOSHY, J

___________________________ SAMBASIVARAO NAIDU, J

Date:11.06.2024 GSD