Telangana High Court
Nampally Sambaiah vs The State Of Telangana on 4 February, 2025
1
THE HONOURABLE SRI JUSTICE K.SURENDER
AND
THE HONOURABLE SRI JUSTICE J. ANIL KUMAR
Crl.A.Nos.488, 549, 686, 485 OF 2017 & 3023 OF 2018
COMMON JUDGMENT:
(per Hon'ble Sri Justice K.Surender)
1. Crl.A.No.488 of 2017 is filed by A-1, Crl.A.No.549 of 2017
is filed by A-2 & A-5, Crl.A.No.686 of 2017 is filed by A-3,
Crl.A.No.485 of 2017 is filed by A-4 and Crl.A.No.3023 of 2018
is filed by A-6, questioning their conviction, for the offences
under Sections 148, 302, 307, 324 r/w. 149 of IPC in
S.C.No.248 of 2010, on the file IV Additional District & Sessions
Judge, Warangal.
2. Since the Appeals are filed by the appellants/A-1 to A-6
questioning the same judgment, all the appellants are heard
together and disposed off by way of this common judgment.
3. Heard Sri A. Prabhakar Rao, Sri M.A.K.Mukheed and
Sri Nandigama Krishna Rao, learned counsel appearing for the
appellants/A-1 to A-6 and Sri Arun Kumar Dodla, learned
Additional Public Prosecutor for respondent-State.
4. Briefly, the case of the prosecution is that A-1 and A-5 are
the sons of A-2, A-3 and A-4 are younger brothers of A-2. A-6
is the close friend of the accused. P.W.1, P.W.8 and the
deceased are the sons of P.W.2 and P.W.5.
5. P.W.1, P.W.4, P.W.8 and the deceased were having
boundary disputes with one Atcha Rajaiah. The disputes were
referred to the elders. A-2 to A-4 acted as elders on behalf of
Atcha Rajaiah and some others acted as elders on behalf of
P.Ws.1, 4, 8 and the deceased. The elders gave their decision in
favour of Atcha Bakkaiah (P.W.5). A-2, A-3 and A-5 insisted
that their word should prevail. There were quarrels in between
the two groups and criminal cases were registered against each
other.
6. The deceased was running a fertilizer shop on the main
road of the village. On 02.08.2009 at about 9:00 a.m., when
P.W.1, P.W.8 and the deceased were in the shop, P.W.6 and
P.W.7 came there to purchase the seeds. A-5, while passing on
the road abused P.W.1, P.W.8 and the deceased saying that
entire road in front of the shop is being used for parking
bullock carts causing nuisance and threatened to see their end.
On hearing the hurling of abuses, P.W.2/mother of P.W.1,
P.W.8 and the deceased came there. Seeing that A-1 to A-5,
holding axes, knife and sticks were coming to the shop, P.W.2
warned P.W.1, P.W.8 and the deceased to run away. The
accused initially attacked P.W.8 with axes on his head, as a
result of which P.W.8 fell down. P.W.1 and the deceased tried
to run away, but the deceased was attacked with axes on his
head by A-1, A-3 and A-4 resulting in instantaneous death of
Sagar/deceased. P.W.1 was beaten with a stick.
7. P.W.5 called for Ambulance to take the deceased and
P.W.8 to the hospital at Parkal. The deceased died on the way
to hospital. P.W.8 was shifted to Parkal hospital initially and
thereafter to MGM hospital.
8. P.W.1 lodged a complaint/Ex.P.1 with the Police/P.W.22,
Chityal. The Police registered a case and issued FIR/Ex.P.22.
9. P.W.26/Inspector of Police took up investigation and went
to the scene of offence, examined P.W.16 and recorded his
statement. P.W.26 prepared scene of offence panchnama and
obtained photographs of the scene in the presence of P.W.16
and another, and seized M.Os.1 to 14.
10. P.W.26 went to Parkarl Government Hospital where
inquest was conducted over the dead body of the deceased in
the presence of P.W.17 and another. Ex.P.34 is inquest
panchanama dated 02.08.2008. The dead body was sent for
post mortem examination. P.W.23/Post mortem Doctor
conducted post mortem and gave report which is Ex.P.29.
11. P.W.8 who was injured in the attack was referred to MGM
hospital. Dr.Sheeresha who treated P.W.8 and issued injury
certificate/Ex.30 was not examined. P.W.24/Chief Medical
Officer was examined, who identified the signature of
Dr.Sheeresha, on Ex.P.30.
12. P.W.25/Asst. Professor of MGM hospital examined P.W.8
and gave treatment. Ex.P.31 is the case sheet of P.W.8.
13. P.W.26 examined P.Ws.2, 4, 6 and 5, recorded their
statements and seized M.Os.12, 13 and 14 under seizure
panchnama/Ex.P.35.
14. On 12.08.2008, A-1 to A-5 were arrested at Dwarakapet
cross roads and their confession statements were recorded in
the presence of P.W.20 and L.W.23, and weapons were
recovered under Ex.P.22. On 18.08.2008, A-6 was arrested and
his confession was recorded in the presence of L.W.24 and
P.W.21. Ex.P.22 is the confession panchnama. M.O.1 was
recovered from the possession of A-6 under recovery
panchnama Ex.P.35.
15. The prosecution has examined P.Ws.1 to 26 and marked
Exs.P.1 to P.36 and M.Os.1 to 14. On behalf of the defence,
Exs.D.1 and D.2 were marked.
16. The evidence of the prosecution, relied on by the learned
Sessions Judge to convict the appellants, is that of P.Ws.1, 2
and 8 and the corroborating medical evidence.
17. The defence of the appellants is one of denial. According
to appellants, they were falsely implicated on account of P.W.1
and his family members holding grudge against them. It is
evident from the record that P.W.1, the deceased and P.W.8
attacked the accused on earlier occasions.
18. The argument of the learned counsel appearing on behalf
of the appellants is as under:-
i. False implication of all the appellants is
evident from the fact that P.W.8 stated to the
Doctor, at the earliest point of time that he was
attacked by the neighbours.
ii. Keeping in view the earlier grudges,
P.W.2/mother of P.Ws.1 and 8, was introduced as
an eye-witness, who falsely stated about her
presence when the incident happened.
iii. The recovered axe from A-3, though subjected
to FSL examination, no blood was found on it.
19. Alternatively, learned counsel argued that appellants were
not convicted under Section 302 r/w.149 of IPC, finding
common object of all the accused, as such, the Court has to
look into overt acts attributed to each of the accused
individually and not collectively. All the villagers met at 9:30
a.m. in the morning, in the normal course. In the said
circumstances, it cannot be said that the appellants had any
kind of premeditation or intention to commit the murder of the
deceased. On account of previous disputes amongst them, it
can be inferred that the incident of attack, happened at the
spur of the moment. Conviction if any, can only be under
Section 304-II of IPC and not under Section 302 of IPC.
20. Learned counsel relied on the judgment of the Hon'ble
Supreme Court in Nallabothu Venkaiah vs. State of A.P. 1 ,
wherein it was held that though there was an allegation of
unlawful assembly, individual overt acts attributed to the
accused can be relied upon to draw inference or participation of
accused. Counsel also relied on the judgment of the Hon'ble
Supreme Court in Bala Seetharamaiah vs. Perike S.RAo And
(2002) 7 SCC 117
Others 2, wherein a similar view was taken by the Hon'ble
Supreme Court.
21. P.W.1, P.W.8 and the deceased are brothers and P.W.2
and P.W.5 are their parents. On the date of incident at 9:30
a.m., A-5 initially went to the scene of offence which was in
front of the fertilizer shop being run by P.W.1. A-5 started
abusing P.Ws.1 and 8 for the reason of blocking the entire road
with bullock carts and altercation ensued. Immediately, other
accused came there.
22. The overt acts attributed by P.W.1 is that A-1, A-3 and
A-4 beat his elder brother/P.W.8 on the head and A-2 stabbed
P.W.8 with a knife on the back and hands.
23. The overt acts attributed by P.W.2 is that A-1 to A-5 beat
her son/P.W.8 on the head. A-1 axed the deceased/Sagar in
the middle of the head, A-3 and A-4 axed the deceased and A-5
beat P.W.1 with a stick on his back and A-6 beat the deceased
with a stick.
24. According to P.W.8, he was initially attacked by A-1, A-2
A-3 and A-4, wherein A-4 was holding axe, A-2 was holding a
knife and A-5 arrived holding a stick. A-1 to A-5 beat P.W.8 as
(2004) 4 SCC 557
a result of which, he fell down. Then they chased the deceased
and inflicted injuries on him.
25. The post mortem Doctor/P.W.23 conducted autopsy over
the dead body of the deceased and found the following injuries:
i. Injury on the left parietal region
measuring 6 x 3 inches.
ii. Injury on the right temporal region
approx 6 x 3 x 3 inches.
iii. Injury on the left temporal region approx
3 x 3 x 3 inches.
iv. Injury on occipital region 10 x 3 x 3
inches.
26. P.W.23 opined that the injuries were possible with an axe.
During cross examination, P.W.23 admitted that there would be
cut and laceration injuries, if a person is attacked with an axe.
27. Insofar as evidence of P.Ws.1, 2 and 8 is concerned, A-1,
A-3 and A-4 were holding axes. They initially attacked P.W.8
and thereafter the deceased. The injuries found during post
mortem examination clearly indicate four injuries that were
inflicted on the deceased exposing the brain matter and
meninges.
28. The argument of the learned counsel that attack was not
premeditated or intentional, and the offence being punishable
under Section 304-II of IPC cannot be accepted. The intention
or knowledge to cause death can be assessed and inferred from
the facts and circumstances of a particular case. In the present
case, axes were held by A-1, A-3 and A-4 and they attacked
P.W.8 first and thereafter the deceased. As already discussed,
four injuries were found on the head of the deceased. In the
said circumstances, it cannot be said that the accused did not
have the knowledge that said injuries would cause death of the
deceased. The intention to cause death, can arise at the
moment when the incident happened. It is not necessary to
prove that accused were either holding grudges or they had an
intent, pursuant to which they have conspired and attacked the
person causing his death. In the present case, there was an
altercation at 9:30 a.m. between A-5 and the deceased.
Thereafter, other accused came there with axes, knife and stick.
From the said acts of the accused, it can be safely inferred that
they had come to the place with an intention of causing harm.
The manner in which the deceased and P.W.8 were attacked,
the intention of the accused is clear.
29. Though the appellants were convicted under Section 148
for unlawful assembly, however, conviction was not recorded
under Section 302 of IPC with aid of Section 149 of IPC. In the
absence of conviction under Section 302 of IPC with the aid of
Section 149 of IPC, the Court can look into individual acts of
the accused and punish them accordingly.
30. A-1, A-3 and A-4 were holding axes and the said axes
were recovered at a later date. The complaint/Ex.P.1 was
lodged immediately after the incident. There was no delay
either in lodging the complaint or sending the complaint to
jurisdictional Magistrate. From the inception of the case, it is
the version of the prosecution witnesses that A-1, A-3 and A-4
were holding axes and they have attacked both P.W.8 and the
deceased. There is absolutely no ground to disbelieve the
evidence of eye witnesses.
31. Accordingly, conviction under Sections 302, 324 and 148
of IPC is maintained insofar as A-1, A-3 and A-5 are concerned
and the conviction under Section 307 is hereby set aside.
32. Insofar as A-2, A-5 and A-6, the conviction under Sections
302 and 307 of IPC are hereby set aside. The conviction under
Sections 324 and 148 of IPC are maintained.
33. Accordingly, all the Appeals are partly allowed.
_________________
K.SURENDER, J
___________________
J. ANIL KUMAR, J
Date: 04.02.2025
dv
