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2024 DIGILAW 615 (TS)

Nimmaraju Srinu v. State Of Telangana

2024-08-29

J.ANIL KUMAR, K.SURENDER

body2024
JUDGMENT: (per Hon’ble Sri Justice K.Surender) This appeal is filed aggrieved by the judgment dated 13.07.2015 in S.C.No.500 of 2013 on the file of VI Additional District and Sessions Judge, Siddipet, convicting the appellant/accused Nos.1 to 3 for the offence punishable under Section 302 read with 34 of Indian Penal Code (for short ‘IPC’), sentencing them to undergo life imprisonment. 2. Heard Sri A.Achutha Reddy, learned counsel for the appellants/accused and Smt. Shalini, learned counsel assisting Sri Jithender Rao Veeramalla, learned Additional Public Prosecutor for respondent-State. 3. Briefly, the case of the prosecution is that there are disputes between the families of accused and deceased. A2 is paternal uncle of PW1, A1 is A2’s son and A3 is A1’s son. On 30.05.2013, when the cattle of PW1 went into the fields of A1 for grazing, A1 detained the cattle at his house. On knowing the same, PW2, who is wife of the deceased, went to accused premises. A1 picked up quarrel with her and thereafter, when PW1 went there, A1 assaulted him also. On seeing the assault, the deceased rushed to the place. Then, A1 pushed aside PW.1 and A2 and 3 caught hold of the deceased. In the mean time, A1 picked up stick and hit the deceased from behind, resulting in fracture of the skull and consequent death of the deceased. The deceased was then taken to the Government Community Hospital, Gajwel. There, he was declared as brought dead. PW1 lodged a complaint/Ex.P1 against the appellants/ accused. On the basis of the complaint, Police registered a case under Section 302 read with 34 of IPC and investigated the case. On conclusion of investigation, charge sheet was filed against the accused for the offence under Section 302 read with 34 of IPC. 4. The learned Sessions Judge, having framed the charges, examined PWs.1 to 14 and Exs.P1 to 19 and MO.1/stick which was allegedly used to beat the deceased was brought on record on behalf of prosecution. Basing on the evidence of the eye witnesses i.e., PWs.1 and 2, the trial Court concluded that there was deliberant intent of accused to cause death of the deceased, pursuant to which, A2 and A3 caught hold of the deceased and A1 beat the deceased on his head with the stick. 5. Basing on the evidence of the eye witnesses i.e., PWs.1 and 2, the trial Court concluded that there was deliberant intent of accused to cause death of the deceased, pursuant to which, A2 and A3 caught hold of the deceased and A1 beat the deceased on his head with the stick. 5. Learned counsel appearing on behalf of appellants would submit that it is admitted by prosecution witnesses themselves that there were disputes between the families of accused and deceased regarding the agricultural land over a period of time. The said incident was not pre-determined and it happened at the spur of the moment. There was no understanding between A1 to beat the deceased and A2 and A3 to catch hold of deceased. When the alleged attack was not planned and assault by A1 was on account of altercation with the deceased and deceased confronting A1, the question of accused being found guilty for the offence of murder does not arise. 6. Learned counsel further argued that in so far as A2 and A3 are concerned, there is absolutely no evidence to suggest that they concerted with A1 to cause injury to the deceased. In fact, in the said incident, A2 and A3 caught hold of the deceased, when the deceased went to their premises and A1 had beat the deceased from behind. It is not even the case that the said beating by A1 was deliberate and to the knowledge of A2 and A3. He relied upon the judgment of the Hon’ble Apex Court in case of Ezajhussain Sabdarhussain and Others Vs. State of Gujarat, MANU/SC/0207/2019 and the relevant portion of the judgment is as follows: “22. Other than the allegation that the accused persons caught hold of deceased Mohammad Shakil, there is no other instigating action or overt act attributed to the present appellant-accused actively participating in the commission of crime as alleged and from the conduct of the accused persons, it seems that there was no meeting of minds to form pre-arranged plan. Other than the allegation that the accused persons caught hold of deceased Mohammad Shakil, there is no other instigating action or overt act attributed to the present appellant-accused actively participating in the commission of crime as alleged and from the conduct of the accused persons, it seems that there was no meeting of minds to form pre-arranged plan. It is true that it can be developed at the spur of the moment but there must be pre-arrangement and premeditated concert which is the requirement of law for applicability under Section 34 IPC and from the case of the prosecution, the mere fact that appellant-accused caught hold of deceased Mohammad Shakil facilitating the other accused persons to come with a knife and gupti and give blows, it cannot be said that the appellant-accused shared common intention with the other accused persons keeping note of the fact that in the complaint which was in the first instance registered for the alleged incident by Accused 1 Iftekharhussain Sabdarhussain, he only recorded the presence of Accused 2 Shefakathussain Sabdarhussain but the time when the complaint was registered at the instance of the present offence by Shamimbanu (PW 1) at 2.00 p.m., the present appellant-accused were also intentionally implicated. Certainly it creates a doubt of their false implication and their presence from the prosecution evidence on record appears to be clouded with suspicion and in our considered view, the present appellants cannot be held guilty of the offence under Section 302 with the aid of Section 34 IPC.” 7. On the other hand, learned Public Prosecutor appearing for respondent-State would submit that though there were disputes between the families, since A1 had assaulted the deceased resulting in his death, it can be inferred that A1 had knowledge and intent to cause the death of the deceased. In the said circumstances, though benefit could be given to A2 and A3, A1 was responsible for committing murder of the deceased. 8. Having gone through the record, the allegation against A2 and A3 is that they caught hold of the deceased when deceased entered into their premises. There was altercation between accused and PWs.1 and 2. Immediately, when A2 and A3 caught hold of deceased, A1 had given one blow with stick on the head of the deceased from behind. 8. Having gone through the record, the allegation against A2 and A3 is that they caught hold of the deceased when deceased entered into their premises. There was altercation between accused and PWs.1 and 2. Immediately, when A2 and A3 caught hold of deceased, A1 had given one blow with stick on the head of the deceased from behind. In the background of there being differences and fighting amongst the families in respect of property, it cannot be said that assault of A1 was pre-determined. Even according to the witnesses, the altercation between them happened, when the cattle entered into the premises of the accused and they were tied up by the accused. Admittedly, A2 and A3 caught hold of the deceased, when he entered into their premises and was arguing with A1. In the said circumstances, when they caught hold of the deceased, apparently, it would be to restrain the deceased from his acts of fighting with them. It is not the case that having caught hold of the deceased, A2 and A3 either asked A1 to assault deceased or A1 asked A2 and A3 to catch hold of the deceased and thereafter, A1 assaulted the deceased. Even according to the narration of the witnesses, the incident happened so quickly that it cannot be said that A2 and A3 have even knowledge of the assault by A1. In the said circumstances, benefit of doubt can be extended to A2 and A3 placing reliance of the judgment of Hon’ble Supreme Court in the case of Ezajhussain Sabdarhussain (1 supra). 9. The other argument advanced by learned counsel for appellants/accused is that even accepting that there was an assault by A1, it cannot be said that there was intention on the part of A1 to cause the death of the deceased. Admittedly, the incident happened on the spur of the moment. 10. The Hon’ble Supreme Court in the case of Mohd. Rafiq alias Kallu Vs. State of Madhya Pradesh, (2021) 10 SCC 706 held as follows: “The question of whether in a given case, a homicide is murder, punishable under Section 302 of IPC or 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 enactment of the IPC. State of Madhya Pradesh, (2021) 10 SCC 706 held as follows: “The question of whether in a given case, a homicide is murder, punishable under Section 302 of IPC or 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 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.” 11. The knowledge and intent of causing death can be gathered from the circumstances of each case. From the present circumstances of the case, it cannot be said that accused No.1 with definitive intent injured the deceased to cause his death. The entire fight as already discussed was on account of quarrel that ensued between the parties when accused detained cattle of PW1. Keeping in view the observations of the Hon’ble Supreme Court in case of Mohd. Rafiq (2 supra), the case against accused No.1 falls within the four corners of Section 304-II of IPC, but not under Section 302 of IPC. Accordingly, the conviction under Section 302 of IPC against A1 is converted to Section 304-II of IPC and he is sentenced to undergo Rigorous Imprisonment for a period of 10 years. 12. Accordingly, the Criminal Appeal is partly allowed and the conviction and sentence of imprisonment imposed against A2 and A3 is hereby set aside. The bail bonds of A2 and A3 shall stand cancelled. Further, A1 is sentenced to undergo Rigorous Imprisonment for a period of 10 years.