Telangana High Court

Medi Veeranna, Warangal Dt And 2 Otrs., vs The State Of Telangana, Rep Pp., on 4 February, 2025

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


             CRIMINAL APPEAL No.1237 OF 2017
JUDGMENT:

(per Hon'ble Sri Justice K.Surender)

1. This appeal is filed by the appellants/accused, aggrieved

by the judgment dated 08.05.2017, in S.C.No.496 of 2009,

passed by the VI Additional District Judge, Mahabubabad,

convicting the appellants/accused for the offences under

Section 307 simpliciter, Section 34 simpliciter, and under

Sections 302 simpliciter and 34 simpliciter. Under 4 counts, the

appellants were sentenced to undergo imprisonment for life.

2. Heard learned counsel for the appellants and Mr. Dodla

Arun Kumar, learned Additional Public Prosecutor appearing on

behalf of respondent-State.

3. Incident happened in front of the house of PW2. PW2 and

the deceased are brothers. PW1 is the wife of deceased. PW4 is

the sister of the deceased.

4. On the date of the incident, accused Nos.1 and 2 went to

the house of PW2, namely Uppalaiah, where PW4, Neelamma

was staying. Accused Nos.2 and 3 beat Uppalaiah for the reason

of giving shelter to PW4, who is the wife of younger brother of

accused No.3. Accused Nos.2 and 3 then questioned as to why

PW4 was staying in the house of PW2, and why PW2 had gifted

a plot in Gundamrajupalli Village. The deceased intervened and

was taking away PW2.

5. Subsequently, accused No.1 stabbed the deceased with

the knife on his back, and the deceased fell down. He was taken

to the local doctor, where, while undergoing the first aid

treatment, the deceased died. Intimation was given to the Police

and the Police went to the village around 06.00 P.M. PW1 gave

the statement to the Police, which is Ex.P1 (written by Police)

and the said complaint was thereafter registered as FIR.

6. PW1, is wife of the deceased, PW2-injured, PW3-mother of

the deceased, and PW4-sister of the deceased were all eye

witnesses to the incident. The date of incident was Diwali

festival. The first altercation in between the accused and PW2

took place, at around 04.00 P.M, as admitted by PW2 in his

cross examination, accused then went to the village and after

consuming alcohol they came back. When the altercation

ensued 2nd time, the deceased intervened and was taking away

PW2, for which reason, accused No.1 stabbed the deceased

from behind.

7. PWs.5 to 14 are all witnesses of the village, and the

seizure panchanama witnesses, turned hostile to the

prosecution.

8. PW15 is the person who recorded the statement and

registered the FIR. PW16 is the post mortem doctor, who

conducted post mortem of the deceased on the next day at

10.30 A.M i.e., 28.10.2008. PW16 found the following injuries:

"1. A contusion 2 x ½ inch over the abdomen left side below the umbilicus.

2. A contusion of 5 x ½ over abdomen left side below the rib cage lying obliquickly.

3. A contusion of 4 x ½ inch over the left elbow.

4. A cut through injury of 2 x 1 ½ inch with depth of 5 inches on the right back of chest below scapula.Corresponding to the fracture of 7th and 8th ribs.

5. A laceration injury measuring about 1 ½ x 1 x 1 inch of right lung with collection of blood about one litre in between both lungs (Mediastinally) present."

9. PW17 conducted scene of offence panchanama, and

collected controlled earth, and examined all the witnesses,

PWs.3, 4, 5, 6 and others. The scene and deceased's body were

photographed. Blood stained clothes of the deceased were also

seized. Accused Nos.1 and 3 were arrested on 31.10.2008. At

their instance, one stick and a knife were seized. Accused No.2

was arrested on 07.11.2008, from his house and one stick was

seized.

10. PW17 Investigating Officer collected MOs.1 to 5 at the

scene and sent them for FSL examination. FSL report found

that blood was present on MOs.1 to 5.

11. Learned Sessions Judge found that there was common

intention on part of accused Nos.1 to 3 for committing murder

of the deceased, and convicted them accordingly.

12. Learned counsel for appellant would submit that the

learned Sessions Judge has committed an error for convicting

the accused under Section 34 simpliciter, since it is not

substantive offence and it can be read with any other penal

offence to infer common intention on part of accused. Further,

counsel argued that, accused Nos.2 and 3 were already present

at the scene, and no overt acts were attributed to them. As

admitted by PW2, accused were in a drunken condition and for

the said reason, the offence, utmost may be, under Section 304

II of IPC and on the basis of one stab injury, it cannot be said

that the offence of murder under Section 302 of IPC is made

out.

13. On the other hand, learned Public Prosecutor would

submit that the incident happened in front of the house of PW2,

and since accused No.1 carried a knife and went to the house of

PW2, it cannot be said that there was no intent on their part.

Further, Investigating Officer did not reveal that accused were

drunk, when the incident had taken place.

14. Though independent witnesses have turned hostile to the

prosecution, the evidence of PWs.1 to 4, though, related with

one another, cannot be brushed aside, only on account of

relation in between them. In fact, accused are also relatives to

PWs.1 to 4. On the date of incident, the reason for altercation

was that PW2 brought PW4 to his house and gave shelter to

her. PW2 also gifted a plot to PW4. PW4 is the wife of younger

brother of accused No.3. The reason for the altercation was PW2

giving shelter to PW4 after she left her husband. The first

altercation took place in the evening when accused went to the

house of PW2. PW2 admitted in his cross examination that on

the same day, they left the place and came back after half an

hour, after consuming alcohol. The overt acts attributed to

accused Nos.2 and 3 are that, they beat PW2 with a stick.

During the said altercation, deceased went there and while he

was taking away PW2, to avoid the altercation between the

accused and PW2, the accused stabbed the deceased from

behind which resulted in a stab injury on the right side of the

chest of the deceased. The said stab injury is the fatal injury

No.4, which resulted in the death of the deceased.

15. Section 34 of IPC punishes persons more than one, who

entertain common intention to commit an offence. Simpliciter

34 of IPC is not a penal offence, but aids the Court in convicting

more than one person, if, on facts, the Court comes to a

conclusion that accused entertained common intent on their

part to commit such an offence.

16. 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.

17. It is not a case where the accused Nos.1 to 3 have gone to

the house of PW2 in a pre-planned manner to cause death of

(2020) 2 SCC 700

PW2. At the first instance, there was an altercation between

PW2, however, the accused left and came back after half an

hour. Even on the 2nd time, when the accused entered into an

altercation with PW2, the deceased was not present. Though

several other villagers were also present, they have not

supported the case of prosecution. However, the deceased went

to the scene and was taking away PW2, and accused No.1,

according to PW2, had consumed liquor and stabbed the

deceased. The reason for the attack on the deceased can be

attributed to his intervening in between PW2 and accused, and

taking away PW2. Angered by the act of deceased taking away

PW2, accused No.1 stabbed the deceased on the right side of

the chest.

18. In the said circumstances, it cannot be said that all the

accused had common intention to cause death of the deceased.

It was not a pre-arranged plan and when the deceased was

taking away PW2, accused Nos.2 and 3, neither instigated

accused No.1, nor had done any acts in order to facilitate or aid

accused No.1 in stabbing the deceased.

19. The conviction of accused Nos.2 and 3 under Section 34

of IPC is erroneous.

20. The Hon'ble Supreme Court in Gurmukh Singh v. State

of Haryana 2, had culled out certain relevant factors that can

be considered by the Court in determining whether culpable

homicide amounted to murder or not, which are as follows:

"These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under:-

(a)      Motive or previous enmity
(b)      Whether the incident had taken place on the spur of the
         moment
(c)      The intention/knowledge of the accused while inflicting the
         blow or injury
(d)      Whether the death ensued instantaneously or the victim died
         after several days
(e)      The gravity, dimension and nature of injury
(f)      The age and general health condition of the accused
(g)      Whether the injury was caused without premeditation in a
         sudden fight
(h)      The nature and size of weapon used for inflicting the injury