Telangana High Court
Turpati Yellaiah vs The State Of Telangana on 20 February, 2025
1
THE HONOURABLE SRI JUSTICE K.SURENDER
AND
THE HONOURABLE SHRI JUSTICE J.ANIL KUMAR
CRIMINAL APPEAL No.1334 OF 2017
JUDGMENT:
(per Hon'ble Sri Justice K.Surender)
1. This appeal is filed by the appellant/accused, aggrieved
by the judgment dated 06.04.2017, in S.C.No.298 of 2016,
passed by the Principal Sessions Judge, Mahabubnagar,
convicting the appellant/accused for the offence under
Section 302 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. PW3 had employed the appellant and his wife
Laxmamma (deceased) for taking care of his cattle. Both the
deceased and the appellant were staying in the cattle shed
and looking after the cattle. On 03.12.2015, PW3 went to the
cattle shed at 04:30 A.M. and found the dead body of the
deceased. The appellant was also sleeping in the shed.
According to PW3, the appellant informed PW3 that when he
tried to wake up the deceased, she was not responding and
there were bleeding head injuries. Immediately, the
information was passed onto PW1, who is the VRO of Village.
Having received information regarding the dead body, PW1
went to the Police Station and lodged Ex.P1 complaint. In the
complaint, PW1 narrated that deceased and the appellant
were taking care of buffaloes in the cattle shed of PW3. It was
informed that on the previous day, i.e., 02.12.2015, the
appellant and the deceased quarreled. Further, it was
suspected that the appellant has killed the deceased in order
to marry a second time.
4 Learned Sessions Judge mainly placed reliance on the
evidence of PW3 and convicted the appellant on the following
grounds:
i. It is admitted that the deceased and the appellant were
taking care of the cattle of PW3, and were living in the cattle
shed. On the previous day, i.e., on 02.12.2015, there were
differences between the appellant and the deceased;
ii. In the morning, PW3 went to the cattle shed and found the
appellant in the cattle shed, with the deceased lying there
with bleeding injuries; and
iii. The appellant was addicted to drinking toddy and there
were constant fights in between the deceased and the
appellant.
5. Learned counsel for the appellant would submit that
the last seen theory would not suffice to infer that it was the
appellant who had caused the death of the deceased. Learned
counsel relied on the judgment of Hon'ble Supreme Court in
Kanhaiya Lal v. State of Rajasthan 1. In the said case, the
Hon'ble Supreme Court, while dealing with the evidence of
last seen, held as follows:
"The circumstance of last seen together does not by
itself and necessarily lead to the inference that it was
the accused who committed the crime. There must
be something more establishing connectivity between
the accused and the crime. Mere non-explanation on
the part of the appellant, in our considered opinion,
by itself cannot lead to proof of guilt against the
appellant."
6. In the above said case, dealt by the Hon'ble Supreme
Court, the accused and the deceased were seen near the
house of one witness PW4. PW4 gave one liquor bottle to the
accused (kanhaiyalal). Thereafter, both the deceased and
PW4 went away. On the next day, body of Kala (deceased) was
found. The said facts differ from the facts in the present case.
7. In the present case, it is not disputed that both the
appellant and the deceased were living in the cattle shed and
there was a scuffle on the previous night. The dead body was
found at 04.30 A.M., and the appellant was present in the
(2014) 4 SCC 715
cattle shed. It is for the appellant to explain under what
circumstances the deceased died. Once the prosecution has
laid foundation regarding the presence of the deceased and
the appellant in the same place from the previous night until
the dead body was found, presumption arises under Section
106 of the Indian Evidence Act. Then it is for the appellant to
prove his defence that he was not responsible, by
preponderance of probability. There is absolutely nothing in
the cross-examination of the witnesses, nor was anything
stated by the appellant to infer that he was not present when
the incident had taken place, or some 3rd person had come to
the cattle shed and caused injuries to the deceased.
8. From the facts, it appears that there were constant
fights in between the appellant and the deceased, and
appellant was also addicted to drinking toddy. It can be
inferred that the assault by the husband on the deceased was
on account of the scuffle in between them in a drunken
condition.
9. The Hon'ble Supreme Court in Mohd. Rafiq v. State
of Madhya Pradesh 2, held as follows:
"The question of whether in a given case, a homicide
is murder, punishable under Section 302 IPC or
2018 SCC OnLine MP 1806
culpable homicide of either description, punishable
under Section 304 of IPC, has engaged the attention
of Courts in India for over one-and-a-half century,
since the entactment of the IPC. A welter of case law,
on the aforesaid aspect exists, including perhaps
several hindered rulings by the Supreme Court. The
use of the term "likely" in several places in respect of
culpable homicide, highlights the element of
uncertainity 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
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."
10. Basing on the injuries caused by the appellant, it
cannot be held that the appellant entertained the intent of
murdering his wife. Even according to PW3, when he went to
the cattle shed, the deceased was lying on the ground and the
appellant informed that she was not responding. From the
said circumstance, it appears that though the appellant had
injured her, he was not aware about the condition of the
deceased. Since the quarrel in between them was a regular
affair, as already discussed, the appellant, in all probability,
has caused injuries, however, the said injuries were caused
without any intention to commit murder.
11. Accordingly, the conviction under Section 302 of IPC is
set aside. However, the conviction under Section 302 of IPC is
converted to Section 304-II, and the appellant is sentenced to
undergo 8 years of imprisonment.
12. Accordingly, this Criminal Appeal is partly-allowed. Bail
bonds shall stand cancelled.
_________________
K.SURENDER, J
___________________
J. ANIL KUMAR, J
Date: 20.02.2025
plp
