Telangana High Court

Mohd.Rafi, Hyderabad., vs The State Of Telangana, Rep Pp., on 6 February, 2025

        THE HONOURABLE SRI JUSTICE K.SURENDER
                               AND
      THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL
              CRIMINAL APPEAL No.1398 OF 2017


JUDGMENT:

(per The Hon'ble Sri Justice K.SURENDER)

This appeal is filed by the appellant/accused aggrieved by

the conviction recorded by the I Addl.Metropolitan Sessions

Judge, Hyderabad, in S.C.No.313/2014, dated 28.07.2017, for the

offence under Section 302 of the Indian Penal Code and

sentencing him to undergo Rigorous Imprisonment for Life and to

pay a fine of Rs.1,000/-.

2. Heard learned counsel for the appellant and Sri D.Arun

Kumar, learned Additional Public Prosecutor.

3. Briefly, the case of the prosecution is that complaint was

filed by PW.1 with the Chandrayangutta Police. In the complaint,

he narrated that the appellant is his son-in-law and his daughter

was married to the appellant and they were blessed with two

children. The deceased was visiting the parents' house frequently,

since the appellant was quarrelling with her. The appellant was

called to their house and he was convinced by PW.1 and others

not to harass the deceased. However, the frequent quarrels in

between the appellant and deceased continued. Further, it was

stated in the complaint that the deceased fell down and received

injury to her throat, resulting in her death. However, PW.1

suspected the appellant of causing the injury.

4. Initially, the case was registered under Section 174 of

Cr.P.C. and investigation was taken up. During the course of

investigation, the appellant was arrested on 13.09.2013. The

appellant confessed to committing the murder of his wife. The

section of law was altered to 302 of Indian Penal Code. The

appellant was produced before the Magistrate. He was sent to

judicial custody. Having concluded investigation, charge sheet was

filed by the police.

5. The learned Sessions Judge on the basis of Section 106 of

Evidence Act, drew presumption that the burden was on the

appellant to explain the circumstances under which the death of

appellant's wife occurred. It is not in dispute that both the

appellant and the deceased were living together under one roof.

Since his presence in the house, when the death took place, was

not disputed by the appellant, the learned Sessions Judge invoked

Section 106 of Evidence Act to shift the burden on to the

appellant. Since the appellant failed to rebut the presumption,

even by preponderance of probability, the appellant was convicted.

6. The learned Senior Counsel appearing on behalf of appellant

would submit that the death was accidental and not homicidal.

Even in the complaint-Ex.P1, the father of the deceased stated

that the deceased fell and received injury on her neck. The

prosecution has utterly failed to prove any pre-meditation or

motive for the appellant to kill his own wife. They have two small

children and one of the child is differently abled. The learned

Senior counsel submits that since the deceased was not looking

after the disabled child, and beating her child, the spouses used

to quarrel. Utmost, the offence would fall under Section 304 part 2

of IPC and not 302 of IPC.

7. The learned Additional Public Prosecutor submits that

strangulation of the appellant was apparent by the fact that nail

marks were found on the neck of the deceased. However, when

questioned, the public prosecutor did not point out from the

record as to where from he argued about the nail marks. Even in

the postmortem examination report, the doctor did not find any

ante-mortem injuries on the neck, especially, nail marks.

8. PW.10, who is the postmortem doctor, having conducted

autopsy, found the following injuries.

"i) Abraded contusions 1 x ½ c.m. on the mucosal surface of lower lip at either angles of mouth

ii) Contusions 2 ½ x 2 c.m. on right anterior frontal region and 4 x 1 ½ c.m. on right temporal region on reflection of scalp

iii) A faint irregularly abraded ligature mark of 18 c.m. x 3 ½ to 3 c.m. on the front of neck, over and above the thyroid cartilage horizontally placed, extending from left sterno hyoid muscle to right sterno hyoid muscle

iv) Multiple petecheal hemorrhages on reflections of both the temporal muscles

v) Multiple grain like petecheal hemorrhages on the mucosa of epiglothis, glothis and subglothis,

vi) contusions of ½ c.m. size at the tip of right homs of hyoid bone and thyroid cartilage

vii) Contusions 9 x 8 c.m. on medial aspect or right arm and 4 x 3 c.m. on the eminence of right palm."

9. The cause of death was due to asphyxia due to pressure over

neck. The doctor, who was examined by the prosecution, could

not conclusively opine that the death was homicidal. Merely

stating that the death was on account of asphyxia due to pressure

over neck, will not be sufficient to infer that the death was

homicidal. The burden is always on the prosecution in a case of

murder to prove beyond reasonable doubt, that the death was

homicidal. Unless it is proved that the death was homicidal, the

question of conviction under Section 302 of IPC does not arise.

10. PW.2, who is the mother of the deceased stated in her cross-

examination that the daughter of the deceased namely, Habeeba is

physically handicapped. She further admitted that, at times the

deceased used to beat the handicapped daughter for which

reason, the appellant used to quarrel with the deceased.

11. The incident happened in between four walls. The appellant,

deceased and the children were in the house. The doctor, as

already discussed has not given any specific reason or explained

to the satisfaction of the Court that the cause of death was

homicidal and did not rule out the possibility of either an

accidental or suicidal death.

12. The Honourable Supreme Court in Mohd.Rafiq alias Kallu

v. State of Madhya Pradesh 1, 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 IPC, has engaged the attention of courts in India for over one-and-a-half century, since the enactment of the IPC. A welter of case law, on the aforesaid aspect exists, including perhaps several hundred rulings by the Supreme Court. The use of the term "likely" in several places in respect of culpable homicide, highlights the element of uncertainty 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 the 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."

(2021) 10 Supreme Court Cases 706

13. In State of Andhra Pradesh v. Rayavarapu Punnayya

and another 2, honourable Supreme Court held:

"21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder", on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of "murder" contained in Section 300. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be "culpable homicide not amounting to murder", punishable under the first part of Section 304, of the Penal Code."

(1976) 4 Supreme Court Cases 382

14. In Anbazhagan v. The State Rep. by the Inspector of

police 3, the Honourable Supreme Court held as follows:

"(5) Section 304 of the IPC will apply to the following classes of cases : (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression 'sufficient in the ordinary course of nature to cause death' but is of a lower degree of likelihood which is generally spoken of as an injury 'likely to cause death' and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death.

To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC.

2023 SCC OnLine SC 857

(12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC."

15. In the background of there being constant quarrels between

the spouses, for the reason of the deceased beating the

handicapped child, who was aged around one year, it can be

safely inferred that a quarrel ensued in between the spouses. As

seen from the postmortem injuries, there were several contusions

on the face and also on the right palm and neck. It is apparent

that the deceased was physically abused. The consequence of

such physical abuse is the death that occurred. In the present

facts of the case, the death occurred while the spouses were in the

house. Though, the prosecution was unable to prove that the

death was homicidal, however, it appears that there was quarrel

between them which resulted in the death of the deceased.