Telangana High Court

Jalla Mohan, Nizamabad Dt And Anr., vs State Of Telangana, Rep. Pp., on 24 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.663 OF 2014


JUDGMENT:

(Per the Hon'ble Sri Justice Sambasivarao Naidu)

This Criminal Appeal has been filed by the

appellants/accused Nos.1 and 2 in a sessions case vide

S.C.No.272 of 2013 on the file of the Sessions Judge,

Nizamabad. The appellants being aggrieved by the

Judgment, dated 28.04.2014 in the above referred sessions

case, whereunder the trial Court found them guilty for the

offence under Section 302 r/w 34 Indian Penal Code (for

short 'IPC'), convicted them under Section 235 (2) Cr.P.C.

and sentenced them to undergo rigorous imprisonment for

life and also to pay fine of Rs.500/-, in default of payment

of fine, defaulter shall undergo simple imprisonment for

one (1) month, preferred this appeal under Section 374 (2)

Cr.P.C., on the ground that the trial Court failed to

appreciate the entire evidence produced by the

prosecution, but placed reliance on highly interested

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evidence of PWs 1 to 6 which consists number of

discrepancies. The trial Court found them guilty only on

presumptions, surmises and conjunctures which are not

relevant to the circumstances of the case. There was no

cogent and trustworthy evidence to convict the appellants

and the trial Court failed to note that the necessary

ingredients to constitute the offence under Section 302 IPC

has not been made out by the prosecution. The trial Court

failed to consider the material contradictions and

omissions elicited during the evidence of PWs 1 to 6. Even

though the Medical Officer did not preserve viscera from

the dead body of the deceased, to know the actual cause,

the trial Court gave a finding as if the appellants herein

killed him and based on the evidence of PW10 who is a

stock witness, the Trial Court found them guilty for the

above said charges, thereby, prayed for setting aside the

conviction and also prayed for their acquittal.

2. As could be seen from the material allegations

made in the charge sheet filed against these appellants, it

was specifically alleged that one Jalla Sailu (hereinafter be

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referred as deceased) was the son of PW1. PW1 approached

the police, Kotagiri and presented written report on

09.03.2013 alleging that there were disputes between his

family and the family of his elder brother, but those

disputes were settled about 3 days prior to the above

referred complaint. But, on 09.03.2013 at about 07:30

p.m., the appellant Nos.1 and 2 herein made an attack by

using an axe and when the accused No.1 beat his son with

the axe, accused No.2 supported him, thereby, sought the

intervention of police.

3. The report that was presented by PW1 was

registered as a case in Crime No.52 of 2013 for the offence

under Section 324 r/w 34 IPC by the then Sub Inspector of

Police, Kotagiri who was examined as PW12. PW12 having

examined PW1 under Section 161 Cr.P.C. recorded his

statement and proceeded to area hospital Bodhan where he

has examined the other witnesses and on the next day he

has visited the scene of offence where he conducted a

panchanama in the presence of PW8 and LW11/Kurma

Kishan. On 11.03.2013 the police have received

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information about the death of the deceased who was

undergoing treatment at Gandhi Hospital, Secunderabad,

thereby PW12 altered the Section of Law from 324 r/w 34

IPC and handed over the subsequent investigation to

Inspector of Police who was examined as PW13. PW13

completed the remaining investigation and having affected

the arrest on 17.03.2013 interrogated them before PW10

and LW16-Shaik Ahmed. The appellants said to have

confessed the commission of offence and produced the axe

that was used by accused No.1 and knife used by accused

No.2 from their possession. He has completed the further

investigation and filed charge sheet which was taken on file

as PRC No.17 of 2013.

4 The learned District Judge having registered the

above case as S.C.No.272 of 2013 proceeded with the trial.

The appellants herein were charged under Section 302 r/w

34 IPC. However, they denied the accusation and claimed

to be tried.

5. In order to prove the case, the prosecution

altogether examined PWs 1 to 13 and marked Exs.P1 to

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P13 and also MOs 1 to 5. None were examined on behalf of

the appellants. After closure of the prosecution evidence,

the appellants herein were examined under Section 313

Cr.P.C., and when the incriminating material was placed

before them, they simply denied the evidence and claimed

that they did not commit any offence.

6. Learned District Judge, having appreciated the

oral and documentary evidence held that the prosecution

was able to prove the guilt of both the accused under

Section 302 r/w 34 IPC and accordingly convicted them as

indicated above.

7. Learned counsel for the appellants herein has

argued that except the evidence of interested witnesses

which is not even corroborated with each other, there is no

other material evidence to believe that the appellants

herein have killed the son of PW1. The trial Court failed to

appreciate the omissions and contradictions elicited from

the material witnesses. Learned counsel has also

submitted that initially the case was registered under

Section 324 r/w 34 IPC. There was no allegation in the

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report presented by PW1 vide Ex.P1 or in the statements

made by the material witnesses before PW12 to the effect

that that the appellants wanted to eliminate the deceased.

Therefore, even if it is accepted that these accused attacked

the deceased, the offence may not fall under Section 302

r/w 34 IPC and at best it would come under the definition

of 304 part 2 IPC, therefore, sought for setting aside the

impugned Judgment.

8. On the other hand, the Assistant Public

Prosecutor has argued that the evidence of material

witnesses would show that there were disputes between

the family of PW1 and his elder brother. There is evidence

before the Court to believe that these appellants attacked

the deceased by using axe and knife and caused injuries

on vital parts of the deceased. Even though there are some

minor contradictions, they may not go to the root of the

case and on the other hand they would prove the guilt of

the appellants for the offence under Section 302 r/w 34

IPC beyond all reasonable doubt. Therefore, she prayed for

dismissal of the appeal.

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9. The charge that was framed against the

appellant is under Section 302 r/w 34 IPC on the ground

that in view of the family disputes between PW1 and his

elder brother, these appellants attacked the son of PW1

and in the said attack they have used dangerous weapons

viz., axe and knife. A report with regard to the alleged

offence was presented on 09.03.2013 and the same was

registered as a case under Section 324 r/w 34 IPC.

10. There is no dispute about the death of the

deceased while undergoing treatment for the said injuries.

According to the evidence of PW1 he was not an eye

witness to the alleged offence, but he was told by PW5 that

the appellants herein attacked his son and due to the

injuries cause by the accused No.2, his son Sailu was not

in a position to speak. He has also stated before the Court

that his wife-Jalla Laxmi who was examined as PW2 and

his daughter-in-law-Jalla Poshakala who was examined as

PW3 also witnessed the above said attack.

11. Whereas according to PW2 the mother of the

deceased, she has categorically stated before the Court that

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in view of the disputes between the families, when her son

was about to enter the house, the appellants herein

dragged him by holding his collar. Appellant No.1 who was

holding an axe pocked him in his stomach with the back

side of the axe portion and appellant No.2 cut the throat of

her son with a knife. Same was the evidence of PW3.

12. Apart from these material witnesses, PW6 who

is also a relative of PW1 also deposed the manner of the

attack that was caused by these appellants. It is true there

is some discrepancy with regard to the specific overt acts

attributed to the appellants when compared with the post

mortem report.

13. According to the allegations in the charge sheet

and as per the evidence of the material witnesses, it is

specifically claimed that both the appellants herein have

attacked the deceased and in the said attack, A1 used axe

whereas, A2 was having knife in his hands. PWs.2, 3 and

5, who supposed to have witnessed the offence deposed

before the Court that A1 while using the wooden portion of

axe caused an injury in the stomach of deceased. These

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witnesses have also stated that A2, who was having a knife

in his hands, caused injuries on the throat and neck of the

deceased. PWs.1 and 2 deposed before the Court that A1

while using the backside of the axe portion caused injuries

not only on the stomach of deceased but also on his neck.

Whereas, as per the evidence of PW11, the Associate

Professor in Gandhi Medical College, who conducted post-

mortem has noticed eight injuries on the neck and two

injuries on the abdomen of the deceased. PW11

categorically stated that he has noticed seven abraded

contusions around the neck of the deceased apart from an

irregular laceration on the top of the shoulder of deceased.

He has also noticed an incised wound present transversely

over left front area of the abdomen of the deceased and

patterned abraded contusions over the left side of the

abdomen of the deceased. The Medical Officer was of the

opinion that the death of the deceased was due to 'Blunt

injury of abdomen and its complications'. Therefore, from

the above evidence, it is very clear that though the second

accused said to have carried a knife did not cause any

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incised injuries on the neck of the deceased, whereas, all

the injuries in and around the neck of the deceased are

abraded contusions which cannot be caused by the use of

a knife.

14. Though the witnesses, who claimed to have

seen the actual assault deposed before the Court that both

the accused were having dangerous weapons in their

hands it is not the evidence of these material witnesses

that accused have used the sharp portion of axe or knife

which were in the hands of A1 and A2.

15. Therefore, the above stated evidence clearly

indicates that the accused might have attacked the

deceased with a view to cause him grievous injuries. Had

there been such an intention in the mind of accused to kill

the deceased, they could have used the sharp portion of

the axe or A2 can as well use the knife for stabbing into the

stomach of the deceased. In addition to this the evidence of

PW.11 further shows that he had noticed black omentum

and gangrenous with foul smell. As per PME Report, it is

very clear that the death of deceased is due to

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complications that arose corresponding to the ninth injury

which is nothing but three patterned abraded contusions.

Therefore, from these circumstances, it cannot be said that

the appellants attacked the deceased with a view to kill

him.

16. However, the evidence of all these material

witnesses clearly shows that the deceased against whom

there was an attack by the appellants herein succumbed to

the injuries that he received in the hands of the appellants.

Therefore, the prosecution was able to prove the

involvement of the appellant Nos.1 and 2 in the

commission of the above said offence.

17. As rightly contended by the learned counsel for

the appellants, even though PW1 and other witnesses

claimed that the appellants made an attack on the

deceased, the overt acts that were spoken to by the

material witnesses indicates that they really don't want to

kill the deceased, but their intention as could be gathered

from the depositions was only to cause bodily harm.

However, in view of the serious injuries that the deceased

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suffered at the hands of the appellants, it leads to his

death. Therefore, the prosecution is not able to establish

the guilt of the appellant Nos.1 and 2 for the offence under

Section 302 IPC beyond all reasonable doubt.

18. 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

12015 SCC Online Ker 39691

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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

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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."

19. 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

2(2018) 4 SCC 329

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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

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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."

20. 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 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

3 (2020) 9 Supreme Court Cases 524

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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

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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

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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."

21. Even though it is established that the

appellants have got no intention to kill the deceased, still

the evidence of all the material witnesses proves that these

appellants have attacked the deceased by using axe and

knife and caused multiple grievous injuries and he died

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due to the complications developed in view of the said

injuries. Therefore, though the charge under Section 302

IPC is not proved against the appellants, the prosecution is

able to prove that the appellants have committed an

offence punishable under Section 304 part II IPC.

22. In the result, the appeal is partly allowed. The