Telangana High Court

V.Anil Kumar , Anji Babu And Ors. vs The State Of Telangana on 24 October, 2024

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  THE HONOURABLE SRI JUSTICE K.SURENDER
                  AND
 THE HONOURABLE SHRI JUSTICE J.ANIL KUMAR

         CRIMINAL APPEAL No.1033 OF 2015
JUDGMENT:

(per Hon'ble Sri Justice K.Surender)

1. The appellant/accused No.1 is the father and

appellants/accused Nos.2 and 3 are the sons of accused

No.1. All of them were sentenced to life imprisonment for

the offence under Section 302 r/w. 34 of IPC, for

committing murder of the deceased namely Azam Baba.

2. According to the case of prosecution, on 30.10.2012

around 08:30 P.M., there was a quarrel in between accused

No.1 and the deceased. Accordingly, accused No.1 beat the

deceased on his head, then accused Nos.2 and 3 came

there and threw a boulder on the head of the deceased,

resulting in his instantaneous death.

3. PWs.1 and 3 are eye witnesses to the incident.

According to PW1, who is the brother of deceased, the

deceased gave an advance amount of Rs.90,000/- to the

accused for leasing out their house. Thereafter, the

accused refused to give the house on lease and the

deceased asked to return the said amount of Rs.90,000/-,

however, the accused kept on postponing the same. On

the date of the incident i.e., 30.10.2013, PW3 and the

deceased went on a two wheeler to the tailor shop of

accused No.1, where an argument took place between

accused No.1 and deceased. According to PW3, accused

No.1 refused to return the advance amount, as such, they

quarreled. During the quarrel, accused No.1 took a stick

and hit on the head of the deceased and when he fell down,

accused Nos.2 and 3 threw boulder on the head of the

deceased. Due to fear, PW3 went away from there.

4. PW1, brother of deceased who was also present at the

scene, lodged a complaint at 10:00 P.M. According to PW1,

an amount of Rs.90,000/- was due from the accused.

While going to his house via his brother's shop he saw that

a quarrel took place between accused and the deceased.

During the said quarrel, accused No.1 beat deceased with

stick and thereafter accused Nos.2 and 3 hit the deceased

with a boulder stone. PW1 had also stated that PW3 was

present when the incident had taken place.

5. PW10 who is the Investigating Officer stated that after

two hours, at 12:30 A.M., early hours of 31.10.2012,

accused No.1 went to the Police Station along with a stick

and surrendered before him. In the presence of

independent witnesses i.e., PWs.7 and 8 who turned

hostile, the confession of accused No.1 was recorded and

MO.2/stick, MO.6/blood stained shirt and MO.7/blood

stained pant of accused No.1 were seized. Later, he

proceeded to the scene of offence and recorded the

statements of PWs.2, 3 and others. On 07.11.2012,

accused Nos.2 and 3 were arrested and their confession

was recorded in the presence of PWs.8 and 9.

6. After the inquest proceedings on 01.11.2012, dead

body was sent to post mortem examination and one Doctor

by name Aarthi conducted the post mortem examination

and issued Ex.P10/Post Mortem Examination Report. The

Doctor who conducted post mortem examination has found

the following injuries on the dead body of deceased:

1. "Crush injury involving forehead up to both eyes below and anterior part of skull 9 x 14 inches with fracture of frontal bone, anterior 1/3rd both parietal bones and anterior 1/3rd of both temporal bones.

2. Rupture brain beneath injury No.1 with explusion of brain matter and haemerhage.

3. Contusion 2 x 2 cm, right side chest."

7. According to PW11, was examined to identify writing

on the post mortem examination report issued by the said

Doctor Aarthi. PW11 stated that the death was on account

of the head injury and further, the injuries were caused by

a hard and blunt object.

8. Charge sheet was filed against accused Nos.1 to 3 for

the offence under Section 302 read with 34 of IPC. The

learned Sessions Judge has mainly placed reliance on the

evidence of PWs.1 and 3, who are eye witnesses to the

incident. Basing on the evidence of PWs.1 and 3 as well as

the corroborating evidence of Doctor, conviction was

recorded.

9. Learned counsel appearing on behalf of appellant

would submit that the motive as projected by the

prosecution that an amount of Rs.90,000/- which was

given towards rent is highly improbable. Admittedly, PW1

stated that in the said premises, the rent would be

Rs.5,000/-. In the said circumstances, giving an amount of

Rs.90,000/- to accused as advance rent is highly

improbable and the same is falsely projected. In fact, PW1

was not present at the time of incident. As seen from his

cross examination, PW1 admitted that the offence occurred

on Tuesday and all the shops near the scene of offence

would be closed. In the said circumstances, when the

shops were closed, the question of PW1 going to his shop

and witnessing while returning to house, does not arise.

Further, PW1 admitted that there are five ways to go his

house from the shop and no reason is given as to why he

has crossed the route from the shop of the accused.

Apparently, PW1 was planted at a subsequent date.

Further, in cross examination, PW1 admitted that he saw a

quarrel between accused No.1 and the deceased from a

distance of 70 feet and at that time, four or five persons

were present. The said evidence when assessed with the

cross examination of PW3, goes to show that PW3 was also

a planted witness. In the cross of examination of PW3, he

stated that he came to the scene after half an hour of the

incident after his friends came to his house. In the said

circumstances, PW3's evidence when excluded from

consideration, there is no other evidence to support the

version of prosecution that it was the accused who caused

the injuries on the deceased.

10. On the other hand, learned Public Prosecutor argued

that in sequence of events, the incident took place at 08:30

P.M., the complaint was lodged at 10:00 P.M. and two

hours thereafter, accused No.1 surrendered before the

Police. Though the witnesses to the confession and seizure

of stick from accused No.1 have turned hostile, it would

not have any impact on the case of prosecution. The scene

of offence panchanama was also immediately conducted

and at the scene, boulder with which the accused Nos.2

and 3 caused injuries to the deceased was seized. There is

no reason why PW3 who is an independent witness would

speak against the accused.

11. The evidence of PWs.1 and 3 who are the eye

witnesses is that since accused No.1 was due an amount of

Rs.90,000/-, which was earlier given by the deceased,

there were disputes in between them. According to PW1,

returning the amount was postponed by the accused, as

such there was a confrontation in between them during

Vinayakachavithi festival. The accused promised to return

the amount after Bakrid festival. After the festival, when

the deceased went to the shop of accused Nos.1 to 3 asking

to return the amount, a quarrel ensued. During the said

quarrel, accused No.1 hit the deceased with a stick and

accused Nos.2 and 3 injured him with a boulder.

12. The Doctor who conducted the Post Mortem

Examination was not examined. PW11 who identifies

signatures and the writings of Post Mortem Examination

conducted by Doctor Aarthi was examined. In the Post

Mortem Examination report, it is mentioned that the death

of deceased was on account of 'head injury'. Though the

injuries are narrated in the Post Mortem Examination

report, no reasons are given as to why the said Doctor

Aarthi who had conducted Post Examination was not

examined. Admittedly, PW11 does not have personal

knowledge about the Post Mortem Examination and about

the injuries that were found on the body and whether they

were correctly written in Post Mortem Examination report.

13. Alternatively, the counsel argued that the case may

fall under Section 304 Part II and not an offence under

Section 302 of IPC. The Hon'ble Supreme Court in

Pulicherla Nagaraju Alias Nagaraja Reddy v. State of

Andhra Pradesh 1 held as follows:

"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 and 304 Part I or 304 Part II. Many pretty or insignifact 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 course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether 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, the cause for such provocation; (ix) whether it was in the heat of

(2006) 11 SCC 444

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

14. Further the Hon'ble Supreme Court in Mohd. Rafiq

v. State of Madhya Pradesh 2 held as follows:

"The question of whether in a given case, a homicide is murder, punishable under Section 302 IPC or culpable homicide of either description, punishable under Section 304 of IPC, has engaged the attention of Courts in India for over one-and-a- half century, since the entactment of the IPC. A welter of case law, on the aforesaid aspect exists, including perhaps several hindered rulings by the Supreme Court. The use of the term "likely" in several places in respect of culpable homicide, highlights the element of uncertainity that the act of the accused may or may not have killed the person. Section 300 IPC which defines "murder", however refrains from the use of term likely, which reveals absence of ambiguity left on behalf of the accused. The accused is for sure that his act will definitely cause death. It is often difficult to distinguish between culpable homicide and murder as both involve death. Yet, there is a subtle distinction of intention and knowledge involved in both the crimes. Such difference lies in the degree of the act. There is a very wide variance of degree of intention and knowledge among both the crimes."

15. On the basis of observations made by the Hon'ble

Supreme Court in the aforesaid judgments, the present

2018 SCC OnLine MP 1806

case, when assessed, it is apparent from the facts that

there was no prior intention or planning to cause any

injuries to the deceased. When the deceased went to the

shop, there was a fight and in the said fight, it is alleged

that accused Nos.1 to 3 caused injuries on the head of

deceased. Apparently, the injuries were caused in the heat

of passion and even according to the witnesses, one blow

was given by accused No.1 and both accused Nos.2 and 3

hit the deceased with a boulder.