Telangana High Court

Mandru Shankar, Medak Dt., vs The State Of Telangana, Rep Pp., on 24 October, 2024

      THE HONOURABLE SRI JUSTICE K.SURENDER
                               AND
THE HONOURABLE SRI JUSTICE ANIL KUMAR JUKANTI

                CRIMINAL APPEAL No.7 OF 2016

JUDGMENT:

(per Hon'ble Sri Justice K. Surender)

This appeal is directed against the judgment of

conviction and sentence dated 17.12.2014 in S.C.No.222

of 2014 on the file of the learned VIII Additional District

and Sessions Judge at Medak, whereby,

appellant/accused was sentenced to undergo rigorous

imprisonment for life and to pay fine of Rs.5000/- for the

offence under Section 302 of Indian Penal Code (for

short 'IPC').

2. Heard learned counsel for the appellant, learned

Additional Public Prosecutor for the respondent-State.

Perused the record.

3. The appellant is questioning the conviction for the

offence under Section 302 of IPC. Learned Sessions Judge

found that he had intentionally caused injury with an axe

on the deceased namely Shivayya in order to kill him.

Accordingly, conviction was recorded.

4. The incident happened on 21.02.2014 when the

deceased went to the kirana shop at around 06.00 PM and

reached Hanuman Galli Road where the appellant

approached him and asked him to give Rs.100/- or to

fetch toddy. The deceased refused and the accused picked

up a quarrel with him. The persons who were present

there pacified the matter and the appellant went away.

According to the eye witness PW.2, the appellant came

back after 10 minutes with an axe and hit the deceased on

his head and ran away from the spot. PW.2 then informed

the father of the deceased/PW.1, who went near the dead

body and later lodged the complaint/Ex.P1.

5. The Police went to the scene of offence, conducted

scene of offence panchanama followed by inquest

proceedings. Thereafter, the dead body was sent for

Postmortem examination. The Doctor, who conducted

Postmortem found the following injuries:

i) 10 x 1 x 3" size incised wound horizontally over left side of the neck below ear lobule.

ii) 5 x 1 x 4" incised wound above the left ear horizontally.

iii) Fracture of left temporal bone of the skull.

iv) Fracture of left mandible bone.

6. PW.5/Doctor, who conducted Postmortem was of

the opinion that the death of the deceased was on account

of Hemorrhage due to head injury.

7. The argument of the learned counsel for the

appellant is two fold. Firstly, the counsel argued that the

appellant was not in a fit state of mind, that is to say that

he could not understand his acts and deeds and he was

insane, as such protection under Section 84 of IPC has to

given. In fact, the very act as projected by the prosecution

reflects that he was suffering from mental disorder.

Alternatively, the learned counsel submits that there was

no intent on the part of appellant and as such, 302 of IPC

does not apply and utmost the case may fall within

Section 304 Part I of IPC or 304 Part II of IPC.

8. On the other hand, learned Additional Public

Prosecutor argued that the intent of the appellant in

causing death of the deceased is apparent from the fact

that the appellant demanded Rs.100/- and when the

deceased refused, he came with an axe after 10 minutes

and hit him on his head. The knowledge and intent are

apparent from the facts of the case.

9. The learned counsel for appellant had provided the

outpatient booklet of Institute of Mental Health,

Hyderabad, wherein the details of treatment taken by the

appellant since 27.01.2010 is reflected in the book. The

said treatment taken by the appellant is not disputed by

the learned Additional Public Prosecutor. Further, the

Medical certificate was issued by the Medical Officer of

Central Prison, Cherlapalli. According to the Certificate

dated 18.09.2014, the appellant's condition was certified

as follows:

i) He was known case of Psychiatric and diagnosed to have moderate HR with Epilepsy.

ii) Since admission in prison, he underwent multiple admissions of Govt. Hospital for Mental care, Erragadda, Hyderabad for his abnormal behavior, decreased sleep.

iii) He was recently admitted at Government Hospital for Mental Care, Erragadda and Hyderabad on 19.04.2024 and discharged on 12.06.2024.

iv) He also underwent Cardiology and Neurology consultation for his complaints of Atypical Chest Pain and Epilepsy in 2021 and advised medical management from Nizam's Institute of Medical Sciences, Punjagutta, Hyderabad, now stable in prison.

v) Presently he is taking medication as advised by Psychiatric doctors of Government Hospital for Mental Care, Erragadda, Hyderabad.

10. The stand of the defence that the appellant was not

seen or mentally unfit to understand his acts was not

taken at the time of trial. However, in the background of

there being no dispute from the learned Additional Public

Prosecutor that the appellant was taking treatment right

from 2010 and also subsequently after he was put in

Central Prison, Cherlapalli, the Medical Certificate reveals

that since 19.12.2014, he was patient of Psychiatric and

diagnosed to have moderate HR with Epilepsy.

11. Even in the treatment book that was produced by

the learned counsel for the appellant, the appellant was

advised to have 'Olanzapine' tablets apart from other

medication which was prescribed. 'Olanzapine' is Atypical

Anti Psychiatric which is administered to adults suffering

for Schizophrenia or Bipolar disorder. Further, the drug is

meant for depressive episodes found in patients.

12. Analyzing the incident that happened, the

appellant approached the deceased and asked him to give

Rs.100/- or purchase toddy for him. When the deceased

refused, the appellant went away and brought an axe and

hit him once on his head. It is not the case of the eye

witness/PW.2 that deceased was repeatedly attacked.

Even according to the Doctor, the injuries that were

mentioned in the postmortem examination was not a

result of continuous beating or attack by the appellant.

13. The Hon'ble Supreme Court in case of Satish

Narayan Sanwat vs. State of Goa 1, while dealing with a

case of murder found that on facts of the case it does not

fall within Section 304-II of IPC. The relevant paragraph is

extracted as under:

" That being the well settled legal position, when we test the factual background of the present case on the principles laid down by this Court in the aforesaid decisions, we are unable to agree with the views taken by the High Court. As already noted, it is quite clear from the record that there was an altercation preceding

2010 (1) ALD (Crl.) 626 (SC)

the incident. The place of occurrence is a residence inhabited by both the parties and there is no evidence on record that the deceased was armed with any weapon. Initially the accused-appellant also did not have any weapon with him but during the course of the incident he went inside and got a knife with the help of which he stabbed the deceased. PW.7 in his cross-examination has categorically stated that death due to stab injury was in consequence of Injury No.1 and all other injuries were superficial in nature. So, it was only Injury No.1 which was fatal in nature. Factually therefore, there was only one main injury caused due to stabling and that also was given on the back side of the deceased and therefore, it cannot be said that there was any intention to kill or to inflict an injury of a particular degree of seriousness. Records clearly establish that there was indeed a scuffle between the parties with regard to the availability of electricity in a particular room and during the course of scuffle the appellant also received an injury which was simple in nature and that there was heated exchange of words and scuffle between the

parties before the actual incident of stabling took place. There is, therefore, provocation and the incident happened at the spur of the moment. That being the factual position, we are of the considered view that the present case cannot be said to be a case under Section 302 of IPC but it is a case falling under Section 304 Part II of IPC. It is trite law that Section 304 Part II comes into play when the death is caused by doing an act with knowledge that is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death".

14. The facts of the case are similar. There was one

assault by the appellant and then he fled. In the said

circumstances, relying on the observations made by the

Hon'ble Supreme Court in Satish Narayan Sawant's

case, while setting aside the conviction under Section 302

of IPC, the appellant is convicted under Section 304 Part II

of IPC.

15. It is informed that the appellant is in jail since

17.12.2014 and is undergoing treatment for mental

disorder and psychiatric issues. This aspect is not

disputed by the learned Additional Public Prosecutor.

16. Since the appellant is in jail for the past 10 years,