Telangana High Court
N.Mallesh, Hyderabad., vs The State Of Telangana, Rep Pp., on 4 February, 2025
1
THE HONOURABLE SRI JUSTICE K.SURENDER
AND
THE HONOURABLE SHRI JUSTICE J.ANIL KUMAR
CRIMINAL APPEAL No.1242 OF 2017
JUDGMENT:
(per Hon'ble Sri Justice K.Surender)
1. This appeal is filed by the appellant/accused, aggrieved
by the judgment dated 20.04.2017, in S.C.No.301 of 2011,
passed by the I Additional Metropolitan Sessions Judge,
Hyderabad, convicting the appellant/accused for the offence
under Sections 302 and 307 of IPC and sentencing him to
undergo life imprisonment.
2. Heard learned counsel for the appellant and Mr. Dodla
Arun Kumar, learned Additional Public Prosecutor appearing
on behalf of respondent-State.
3. The appellant was convicted by the learned Sessions
Judge for committing murder of his wife, and also injuring
PW3, his brother-in-law, by hitting them with a DCM Van,
after an altercation with deceased and PW3.
4. The version of the eye witnesses is that, on 19.11.2010,
PWs.1 to 3, 5, 6, and others went to attend the 10th day
funeral ceremony of the wife of PW3 at Ratnam Basthi,
Moosarambagh. At around 09.00 P.M., appellant went there
and came back after consuming alcohol. Under the influence
of alcohol, appellant picked up quarrel with PW3 and
questioned him as to why he was not sending his wife. Then
PW3 stated that the appellant was harassing his sister
(deceased) i.e., wife of appellant. Heated argument took place
in between deceased and PW3. The other relatives who were
present, i.e., PWs.1, 2, 5, 6, and others intervened and
separated both of them. Then the appellant got into the DCM
Van, drove the vehicle and dashed against PW3, and his wife
(Mogulamma). Both PW3 and deceased were taken to the
hospital. PW3 sustained grievous injuries and initially, he
was treated at Osmania General Hospital, and thereafter at
NIMS Hospital, where he was an in-patient for more than two
weeks.
5. On the basis of complaint given by PW1, Police
investigated the case and filed charge sheet against the
appellant for committing murder of his wife under Section
302 of IPC and also Section 307 of IPC for attempting murder
of PW3.
6. Learned counsel for the appellant would submit that
scene of offence is different from what was projected during
the course of trial. According to the witnesses, incident
happened in front of the house of PW1, where the 10th day
ceremony was going on. However, as evident from Ex.D2,
which is the statement made by PW3 before the Police, the
incident happened at Moosarambagh cross road, which is
admittedly at the distance of 1 k.m. from the house. The said
discrepancy in the scene of offence would have an impact on
the finding of learned Sessions Judge. When the prosecution
fails to prove the exact place, where the incident had taken
place, the benefit of doubt has to be extended.
7. PWs.1 to 3, 5, and 6 are the eye witnesses to the
incident. All of them are close relatives. Appellant is brother-
in-law of PW3. The narration of eye witnesses is consistent.
All of them have stated that appellant was drunk and entered
into an altercation with PW3, questioning him as to why he
was not sending the deceased, who is the wife of appellant,
along with the appellant. Thereafter, he started the DCM Van,
and hit both the deceased and PW3.
8. Considering the version of eye witnesses, the reason for
the appellant driving the DCM Van and hitting his wife and
PW3, is the refusal by PW3 to send the deceased along with
the appellant. Admittedly, the appellant was fully drunk and
his act of driving a DCM Van and hitting the deceased and
PW3 was pursuant to the quarrel that took place, when
appellant was in a drunken condition.
9. The Hon'ble Supreme Court in Virender v. State of
Haryana 1, held as follows:
Inference of vicarious liability --- In order to
invoke principle of joint liability in commission of
criminal act as laid down in Section 34, prosecution
should show that criminal act in question was done by
one of the accused person in furtherance of common
intention of all. Common intention may be through a pre-
arranged plan, or it may be generated just prior to the
incident. Common intention denotes action in concert,
and a prior meeting of minds. The acts maybe different,
and may vary in their character, but they are all actuated
by the same common intention. Question as to whether
there is any common intention or not depends upon the
inference to be drawn from the proven facts and
circumstances of each case. Totality of the circumstances
must be taken into consideration in arriving at the
conclusion whether accused persons had the common
intention to commit the offence.
10. Learned counsel submits that appellant is now under
the treatment for paralysis, he is in the house and his
parents have to take care of him. The Hon'ble Supreme Court
in Gurmukh Singh v. State of Haryana 2, held that Court
has to be cautious, while sentencing the accused. The factors
regarding the manner in which the incident has taken place
and mitigating circumstances also have to be looked into,
before awarding the appropriate sentence.
11. It is not disputed that appellant is suffering from
paralysis and cannot move without assistance of a person. In
(2020) 2 SCC 700
2009 (15) SCC 635
fact, the SI of Malakpet has provided information to the
Public Prosecutor, which was filed before the Court. In the
said information, it was mentioned, that the appellant was
undergoing treatment in Nizam Institute of Medical Science,
for paralysis. Photographs of the appellant were also filed by
the SI of Police showing that the appellant is bed ridden and
immobile.
12. Having considered the relevant factors, the conviction
under Section 302 of IPC is set aside, however, the appellant
is convicted under Section 304-II of IPC. Keeping in view, the
ailment of the appellant and also the sentence of 5½ years of
imprisonment undergone by him, we deem it appropriate to
reduce the sentence of imprisonment to the period already
undergone by him.
13. Accordingly, this Criminal Appeal is partly-allowed. Bail
bonds shall stand cancelled.
_________________
K.SURENDER, J
___________________
J. ANIL KUMAR, J
Date: 04.02.2025
plp
