Telangana High Court

Akarapu Adavaiah, Nagara Bangala And ... vs P.P., Hyd on 12 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.1056 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

preferred by the two appellants - accused questioning the judgment

of conviction dated 14.05.2013 in Sessions Case No.86 of 2012

passed by the II Additional Sessions Judge, Nalgonda at Suryapet.

2. Heard Mr.Mettu Govardhan Reddy, learned counsel for the

appellants and the learned Public Prosecutor appearing for the

respondent - State.

3. Vide the impugned judgment, the two appellants herein have

been found guilty of having committed the offence punishable under

Section 302 of IPC, 1860 (for short, 'IPC') and have been sentenced to

undergo rigorous imprisonment for life with fine of Rs.500/- and in

default to suffer simple imprisonment for a period of six (06) months.

4. The brief facts relevant for adjudication of the present appeal

are that, on 05.03.2009 in the morning of 5:30 hours, the

complainant (Padamati Somaiah) son of Akarapu Laxmamma lodged

a complaint at Arwapally Police Station which was registered as

Crime No.21 of 2009. According to the complainant, his elder brother

Padamati Balaiah (hereinafter, the 'deceased') who resides in the

same village was married to PW.4 (Padamati Dhanamma) at Nagaram

Bangala of Arwapally. Appellant No.1 is the father-in-law and PW.7

(Akarapu Laxmamma) is the mother-in-law of the elder brother of the

complainant and appellant No.2 (Akarapu Sujatha) is the daughter of

appellant No.1 and PW.7.

5. It is said that appellant No.1, the father-in-law of the

complainant's elder brother used to suspect the fidelity of his wife

PW.7 and used to pick up quarrels with her very often and also used

to beat her up after getting drunk. This was informed to the

complainant by the deceased and even two days back there was an

assault made by appellant No.1. As per the complainant on

04.03.2009, in the morning, the family members of the wife of

appellant No.1 had come to the village and had cautioned appellant

No.1 not to beat his wife, however, after the relatives went back in

the evening on the same day, the appellant No.1 again picked up

quarrel with his wife Akarapu Laxmamma and started beating her.

When PW.4 interfered and asked not to assault her, the appellant

No.1 abused her and threatened her to remain away. At this

juncture, the deceased interfered. However, appellant No.1 and his

daughter, the appellant No.2, said to have attacked the deceased

with sticks over the head and other parts of the body causing

bleeding injuries, on account of which he succumbed to the injuries

later on. The daughter of appellant No.1 and the sister of appellant

No.2 who is also the wife of the deceased who was initially abused by

the appellant No.1 was an eye witness to the entire incident. On the

basis of the investigation, charge-sheet was filed against the

appellants for the offence punishable under Section 302 of IPC.

6. The prosecution in all examined as many as fifteen (15)

witnesses and no witnesses were examined in defence. Finally after

recording the statement of the appellants under Section 313 of

Cr.P.C, the impugned judgment of conviction was passed where the

Trial Court found the appellants guilty of the offences punishable

under Section 302 of IPC and have been sentenced and fined as

stipulated in the preceding paragraphs.

7. Learned counsel for the appellants at the first instance referred

to the case of prosecution and contended that upon plain perusal of

the prosecution case and accepting it as gospel truth, it would be

evidently clear that the ingredients necessary for making out a case

under Section 302 was not available. In fact, there is no material to

implicate appellant No.2 for the offence punishable under Section

302 except for the vague averment of appellant No.2 also joining

appellant No.1 in the assault and there is also no material to show

that they had used any weapon or a stick in the course of attack and

even if she had hit the deceased no injury was sustained by the

deceased on account of the assault made by appellant No.2, and

therefore, the conviction of the appellant No.2 under Section 302 of

IPC is bad in law.

8. At this stage, it was found that pending appeal before this

Court, there was petition under Section 482 of Cr.P.C filed

questioning the juvenility of the appellant No.2. The High Court

initially vide the order dated 10.04.2017 had ordered the II

Additional Sessions Judge, Nalgonda at Suryapet to conduct an

enquiry and submit his report on the juvenility. The II Additional

Sessions Judge subsequently conducted an enquiry and reached to

the conclusion that on the date of incident, the appellant No.2 was a

juvenile aged around fifteen (15) years as her date of birth was

10.06.1994 and the date of incident was 04.03.2009. On the basis of

the said finding of the II Additional Sessions Judge, the petition

under Section 482 of Cr.P.C filed on behalf of the appellant No.2 was

allowed and she was ordered to be released from jail as she had

already remained under custody for a period much more than the

maximum that could had been imposed under the Juvenile Justice

Act. In view of the appellant No.2 getting released vide order dated

20.06.2017 in Crl.A.M.P.No.767 of 2017, the present appeal is only

confined to appellant No.1.

9. We had put a specific query to the learned Public Prosecutor as

regards whether there was any strained relationship between the

appellant No.1 and the deceased to which the learned Public

Prosecutor gave a specific response in the negative saying that there

was no enmity at all between the appellant No.1 and the deceased.

The learned Public Prosecutor accepts and admits the fact that, in

fact, it was the fight which was between the appellant No.1 and his

wife PW.7 and in the process PW.4 intervened but could not succeed

as the appellant No.1 started abusing her to stay away. It was at this

juncture that the deceased tried to intervene to which the appellant

Nos.1 and 2 shifted the attack from PW.7 to that on the deceased.

Ex.P4 is the postmortem report dated 05.03.2009 conducted by

PW.9, the Doctor, who opined the cause of death due to extra dural

hammerage secondary to head injury.

10. From the details of the injuries that are reflected from the

postmortem report, it is reflected that there was only one injury

caused with a hard and blunt object and the injury was around 8cm

length × 0.5cm width skin deep bone exposed on the right parieto

temporal region. Other than the aforesaid injury, there does not

seem to be any further injury that was detected by PW.9. Neither was

the cause of death for any other injury is reflected in the postmortem

report. From the statement of the eye witness PW.1, the daughter of

the appellant No.1 herself and the wife of the deceased, it was

appellant No.1 who had assaulted the deceased and appellant No.1

is said to have hit the deceased with a stick which fell on the back

portion of the head.

11. This being the admitted factual matrix, apparently there was

no animosity between the appellants and the deceased. Admittedly,

there was also no fight, at the first instance between the appellants

and the deceased. Rather the appellant No.1 was in fact assaulting

his wife PW.7 which was being intervened by the deceased and his

wife PW.4. In the process, the appellant No.1 assaulted the deceased

by giving a solitary blow on his head and also abused PW.4 for

unnecessarily interfering in a husband and wife affair.

12. 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.

13. 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

2015 SCC Online Ker 39691

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 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."

14. 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

(2018) 4 SCC 329

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;

(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."

15. 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 Gorakhbhai Nayak 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

(2020) 9 Supreme Court Cases 524

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 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."

16. In the given factual matrix of the case and the judicial

precedents referred to in the preceding paragraphs, firstly for the

reason that there was only solitary assault and one solitary injury on

the body of the deceased. Secondly, for the reason that there was no

animosity between the appellants and the deceased and thirdly that

the deceased in fact was trying to pacify the appellant No.1 from

attacking PW.7, the wife of the appellant No.1 and the mother-in-law

of the deceased, we are of the considered opinion that undoubtedly

there was no intention or mens rea on the part of the appellants in

killing the deceased or were available at the scene of occurrence with

a pre-mediated and pre-determined mind of eliminating the

deceased. In the absence of which the offence under Section 302 of

IPC would not be made out. Nonetheless since the assault stands

proved from the statement of PW.1, appellant No.1 undoubtedly is

found guilty of having committed the offence under Section 304 Part

II of IPC rather the offence under Section 302 of IPC.

17. Upon verification of facts from the learned counsel for the

appellants and also from the learned Public Prosecutor, it is revealed

that appellant No.1 has already remained in custody for a period of

more than eleven (11) years. Under the circumstances, we find that

the period of custody undergone by the appellant No.1 to be

sufficient sentence under Section 304 Part II of IPC and it is ordered

accordingly. The conviction under Section 302 of IPC so far as the

appellant No.1 is concerned, is set-aside. However, he stands guilty

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

his sentence is retracted for the period already undergone.