Telangana High Court
Kukatla Kumar A1, Karimnagar And Anr., vs State Of Telangana, Rep Pp., on 5 September, 2024
THE HONOURABLE SRI JUSTICE K.SURENDER
AND
THE HONOURABLE SRI JUSTICE ANIL KUMAR
JUKANTI
CRIMINAL APPEAL No.123 OF 2015
JUDGMENT:
(per Hon'ble Sri Justice K. Surender)
This appeal is directed against the Judgment of
conviction and sentence dated 05.02.2015 in S.C.No.414 of
2013 on the file of the Judge Family Court-cum-Additional
District Judge, at Karimnagar, whereby, appellants-accused
Nos.1 and 2 were sentenced to undergo life imprisonment and
to pay fine of Rs.1000/-, in default simple imprisonment for
three months for the offence under Section 302 of Indian
Penal Code, also sentenced to undergo imprisonment for a
period of one year for the offence under Section 324 of Indian
Penal Code (for short 'IPC'). Both the sentences of
imprisonment were directed to run concurrently.
2. Heard Sri V. Raghunath, learned Senior counsel for
the appellants, learned Additional Public Prosecutor for
respondent-State and perused the record.
3. Learned Senior Counsel appearing for the
appellants would submit that the accused No.2 was
granted remission and he was already released from
prison, as such, he confines his argument to accused
No.1.
4. Briefly, the case of the prosecution is that the
deceased namely Mallaiah was the younger brother of
accused Nos.2 and 3 and husband of PW.1. There was
distribution of landed property amongst the brothers i.e.,
deceased, accused Nos.2 and 3. However, according to
the prosecution case, accused Nos.2 and 3 wanted
additional share in the property that belongs to the
deceased. For the said reason, there were constant fights
among the brothers. On 21.11.2012, accused Nos.2 and
3 took cement bricks loaded in tractor around 9.00 AM
and dumped bricks in front of the house of the deceased.
Deceased objected for dumping of the bricks. Enraged by
the deceased's objecting and obstructing to construct the
compound wall, it is alleged that the appellants/accused
Nos.1 to 6 formed into unlawful assembly armed with
sticks and beat the deceased, PWs.2, 3 and 4 and caused
injuries to them. The deceased died while undergoing
treatment. PWs.2, 3 and 4 were also treated in the
hospital. The said incident happened on 21.11.2012 at
9.00 AM., and the complaint was lodged at 11.45 PM
before the Police on the same day which is Ex.P-1.
5. In the Telugu written complaint of PW.1, she affixed
her thumb impression. The names of accused Nos.1 to 6
were mentioned and it is also mentioned that all accused
Nos.1 to 6 attacked the deceased and PWs.2, 3 and 4
with sticks, stones and cement bricks. The said attack by
accused Nos.1 to 6 resulted in death of the deceased and
injuries to PWs 2 to 4.
6. On the basis of the complaint, the police
investigated the case and filed charge sheet for the
offences under Sections 148, 302, 307, 324, 326 r/w 149
of IPC.
7. Learned Sessions Judge framed charges for the
offences under Sections 148, 302, 324, 326, 307 r/w 149
of IPC.
8. During the course of trial, the prosecution examined
PWs.1 to 15 of whom PW.1 is the complainant, PWs.2 to
4 are the injured eye witnesses and PW.5 is an
independent eye witness.
9. Learned Sessions Judge, on considering the
evidence placed on record by the prosecution found that
the complicity of accused Nos.3 to 6 was not conclusively
proved, as such, acquitted them extending benefit of
doubt. However, the appellants/accused Nos.1 and 2
were convicted for the offences under Sections 302 and
324 of IPC.
10. Learned Senior Counsel appearing on behalf of the
appellant/accused No.1 would submit that admittedly,
there were disputes in between the family members i.e.,
witnesses PWs.1 to 4 and accused Nos.1 to 6 who belong
to same family and they were fighting over the property.
However, the manner in which the incident had taken
place has been suppressed by the prosecution. PW.14,
who is the Investigating Officer admitted that the
appellant/accused No.1 was hospitalized on account of
the injuries along with others. When the
appellant/accused No.1 was injured in the said fight, it is
bounden duty of the prosecution to explain the injuries
suffered by the appellant. In the absence of any
explanation, the Court has to view that the actual version
of the prosecution case was suppressed and a false
version has been projected by the prosecution.
11. He relied on the Judgment of the Hon'ble Supreme
Court in NandLal and Others vs The State of
Chattisgarh1 the Hon'ble Court held:
"We will first consider the issue with regard to non-
explanation of injuries sustained by accused 11 Naresh
Kumar. In Lakshmi Singh V. State of Bihar 2, which case
also arose out of a conviction under Section 302 r/w 149
of IPC, this Court had an occasion to consider the issue of
non-explanation of injuries sustained by the accused.
2023 10 SCC 470
(1976) 4 SCC 394 : 1976 SCC (Cri) 671
This Court, after referring to the earlier judgments on the
issue, observed thus:
"12... It seems to us that in a murder case, the non-
explanation of the injuries sustained by the accused at
about the time of occurrence or in the course of altercation
is a very important circumstances from which the Court
can draw the following inferencs:
(1) That the prosecution has suppressed that
genesis and the origin of the occurrence and has
thus not presented the true version:
(2) That the witnesses who have denied the
presence of the injuries on the person of the
accused are lying on a most material point and
therefore their evidence is unreliable.
(3) That in case there is a defence version which
explains the injuries on the person of the
accused it is rendered probable so as to throw
doubt on the prosecution case.
The omission on the part of the prosecution to
explain the injuries on the person of the accused assumes
much greater importance where the evidence consists of
interested or inimical witnesses or where the defence
gives a version which competes in probability with that of
the prosecution one. In the instance case, when it is held,
as it must be, that the appellant Dasrath Singh received
serious injuries which have not been explained by the
prosecution, then it will be difficult for the Court to rely on
the evidence of PWs.1 to 4 and 6, more particularly, when
some of these witnesses have lied by stating that they
did not see any injuries on the person of the accused.
Thus neither the Sessions Judge not the High Court
appears to have given due consideration to this important
lacuna or infirmity appearing in the prosecution case. We
must hasten to add that as held by this Court in State of
Gujarath v. Bai Fatima 3 there may be cases where the
non-explanation of the injuries by the prosecution may
not affect the prosecution case. This principle would
obviously apply to cases where the injuries sustained by
the accused are minor and superficial or where the
evidence is so clear and cogent, so independent and
disinterested, so probable, consistent and creditworthy,
that if far outweighs the effect of the omission on the part
of the prosecution to explain the injuries. The present,
however, is certainly not such a case, and the High Court
was, therefore, in error in brushing aside this serious
infirmity in the prosecution case on unconvincing
premises".
12. Learned Senior Counsel concluded his argument
saying that the very genesis of the incident has been
suppressed by the prosecution, therefore, benefit of
doubt has to be extended to accused No.1. It is also the
argument of the learned counsel that the specific overt
act that was attributed to accused No.1 regarding beating
deceased with cement brick is a complete improvement
during the course of trial. It is admitted by the
(1975) 2 SCC 7 : 1975 SCC (Cri) 384
Investigating Officer that PWs.1 to 5 who have stated
about accused No.1 beating the deceased with a cement
brick is a complete omission in the earlier statement.
The said fact also goes to show that actual version of the
incident is not stated by any of the prosecution
witnesses.
13. On the other hand, learned Additional Public
Prosecutor submits that there is no reason why
independent witness PW.5 would state against the
appellant-accused No.1. Admittedly, there were disputes
between the family members who are PWs.1 to 4 and the
accused Nos.1 to 6.
14. Learned Additional Public Prosecutor argued that in
the said circumstances, when there are disputes in
between the family members and the fight happened,
since the deceased died, conclusion would be that the
appellant-accused No.1 and the other accused were
aggressors in the incident. Merely, because accused No.1
was injured, that in itself does not mean that the version
of prosecution is incorrect. If at all accused No.1 was
injured, burden is cast upon him to prove how the
injuries were received by him and also file document to
that effect. Since accused No.1 failed to file any such
proof, it cannot be assumed that prosecution has
suppressed the actual incident.
15. Having gone through the record, at the earliest
point of time, after the incident happened around 9.00
AM, complaint was filed at 11.45 AM. Written complaint
made in Ex.P1 reflects that all accused Nos.1 to 6 have
attacked the deceased and also when PWs.2 to 4 came
there, they were also injured by the accused. Omnibus
allegations of all the accused attacking the deceased and
others was mentioned. However, during the course of
trial, PWs.1 to 5 witnesses specifically stated that
accused No.1 has assaulted the deceased with a cement
brick. During the course of trial, the prosecution has
marked M.O.9, which are pieces of cement brick. The
defence of the accused is that the deceased fell on a
boring pump, resulting in injuries to him.
16. PW.14, who is the Investigating Officer, admitted
that PWs.1 to 5 did not speak about accused No.1
injuring the deceased with a cement brick on his head.
The said version was neither stated in the complaint nor
in 161 Cr.P.C statement, which was recorded at the
earliest point of time. As projected by the prosecution,
there was free fight in between PWs.1 to 4 and deceased
on one side and accused Nos.1 to 6 on the other.
17. Learned Sessions Judge had found that accused
Nos.3 to 6 were not responsible for causing injuries and
accordingly extended benefit of doubt.
18. The Hon'ble Supreme Court in Sudhir and
another Vs. State of Madhya Pradesh 4, held on facts
that the evidence of injured eye witnesses containing
many infirmities, has to be rejected.
ii) Bandi Mallaih and others Vs. State of
Andhra Pradesh 5, on facts it was held that any
statement made by a witness in Court and not found in
(AIR 1985 SC 515)
(1980 (3) SCC 136
FIR or Section 161 Cr.P.C statement, the same has to be
viewed with suspicion.
iii) Javed Shaukat Ali Qureshi Vs. State of
Gujarath6, the Hon'ble Supreme Court held that where
there is a similar or identical evidence of eye witnesses
against two accused ascribing them same or similar role,
court cannot convict one accused and acquit other, In
such cases, cases of both accused will be governed by
principle of parity, which means that criminal Court
should decide the cases alike, and in such cases, court
cannot make distinction between two accused, which will
amount to discrimination".
19. As rightly argued by the learned Senior Counsel for
the accused No.1, the prosecution has duty of explaining
the injuries that were caused to accused No.1.
Deliberately the injuries caused to accused No.1 was
suppressed by the prosecution. It is evident from the
admission of PW.14/Investigating Officer that accused
No.1 was hospitalized with injuries. In the background of
(2023 (9) SCC 164)
the trial Court disbelieving involvement of accused Nos.3
to 6 and also the suppression by the prosecution
regarding the injuries, it creates any amount of doubt
regarding the projection of the incident and the manner
in which the appellant and others were injured. The
defence is further on the ground that all the witnesses
PWs.1 to 5 have improved their earlier statement during
the course of trial while implicating the accused No.1.
20. The fact remains that at the earliest point of time, it
was clearly mentioned that the appellant No.1 had
injured the deceased along with others, however,
involvement is not disputed nor fight among the two
parties. Though, the specific allegation against the
accused No.1 is disputed, however, the attack by accused
No.1 is consistent. For the said reasons, this Court
deems it appropriate to convert the conviction under
Section 302 of IPC to 304-II of IPC.
21. Hence, the conviction and sentence recorded under
Section 302 of IPC is set aside and the appellant-accused
No.1 is convicted for the offence under Section 304-II of
IPC. Since, the appellant is in jail since 05.02.2015,
which is nearly none (09) years, the sentence of
imprisonment is set off to the period already undergone.
22. Accordingly, the Criminal Appeal is partly allowed.
The petitioner shall be set at liberty forthwith, if he is not
required in any other cases. The fine amount remains
unaltered.
_________________
K.SURENDER, J
__________________________
ANIL KUMAR JUKANTI, J
Date: 05.09.2024
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