Andhra Pradesh High Court - Amravati
Uppu Yuva Teja, Nellore., vs The State Of Ap., Rep Pp., on 5 August, 2024
Author: K Suresh Reddy
Bench: K Suresh Reddy
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3486]
(Special Original Jurisdiction)
MONDAY,THE FIFTH DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE K SURESH REDDY
and
THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY
CRIMINAL APPEAL Nos.1280 OF 2016, 1295 OF 2016
& 1312 OF 2016
Between:
...APPELLANTS
V.Dileep Kumar @ Dileep & another
AND
...RESPODENT
The State Of A P
Counsel for the Appellants:
Sri T.Pradyumna Kumar Reddy, learned senior counsel
appearing for the learned counsel for appellant/A.1;
Sri D.Kodandarami Reddy, counsel for appellant/A.2;
Sri T.Nagarjuna Reddy, counsel for appellant/A.3
Sri Vijaya Saradhi, counsel for appellant/A.4
Counsel for the Respondent:
1. PUBLIC PROSECUTOR (AP)
The Court made the following:
Page 2 of 43
THE HONOURABLE SRI JUSTICE K.SURESH REDDY
AND
THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY
CRIMINAL APPEAL Nos.1280 OF 2016, 1295 OF 2016
& 1312 OF 2016
COMMON JUDGMENT:
(Per the Hon'ble Sri Justice K.Sreenivasa Reddy) Appellants in Criminal Appeal No.1280 of 2016 are A.1 and A.4, appellant in Criminal Appeal No.1295 of 2016 is A.3 and appellant in Criminal Appeal No.1312 of 2016 is A.2, in Sessions Case No.277 of 2013 on the file of the I Additional Sessions Judge, Nellore. They preferred the respective appeals challenging the conviction and sentence recorded against them in the judgment dated 14.12.2016 in the aforesaid Sessions Case.
2. Vide the impugned judgment, the learned Sessions Judge found A.1, A.3 and A.4 guilty of the offence punishable under Section 302 read with 34 IPC and found A.2 guilty of the offences punishable under Sections 302 and 324 IPC, and accordingly convicted them of the said offences and sentenced A.1, A.3 and A.4 to undergo imprisonment for life and to pay fine of Rs.2,000/- in Page 3 of 43 default to suffer simple imprisonment for a period of three months for the offence punishable under Section 302 read with 34 IPC, and sentenced A.2 to undergo imprisonment for life and to pay fine of Rs.2,000/- for the offence punishable under Section 302 IPC and to undergo rigorous imprisonment for a period of two years for the offence punishable under Section 324 IPC. All the sentences are directed to run concurrently.
3. The substance of charge against the accused is that on 30.12.2010 at about 5.30 PM near Axis Bank ATM, B.S.N.L. Office, Leela Mahal Road, Nellore, all the accused caused death of one Ummadisetty Sai Kumar (hereinafter referred to, as 'the deceased'); A.2 stabbed the deceased with a knife; A.1, A.3 and A.4 had common intention to kill the deceased whereas A.1 instigated A.2 to kill the deceased while A.3 and A.4 caught hold of the deceased.
4. Case of the prosecution, in brief, is that the deceased and all the material prosecution witnesses are residents of Nellore. The deceased is son of P.W.2. P.W.2 is maternal uncle of P.W.1. P.Ws.8 and 9 were students of Page 4 of 43 Krishna Chaitanya Degree College, Nellore. The deceased and A.1 were studying in the same college. About one month prior to the incident, the deceased, P.W.8, P.W.9, A.1 and others went to Mypadu beach, where they saw A.1 and one Aparna (L.W.13) moving closely in the beach. P.Ws.8 and 9 informed the same to the deceased. Then the deceased started teasing A.1 stating 'Mypadu Mypadu'. Thereupon, the deceased and A.1 quarrelled with each other. A.1 went and complained to P.W.10, who was working as a Lecturer in Krishna Chaitanya Degree College, Nellore, stating that his friends were commenting them. Then, P.W.10 summoned the deceased and his friend P.W.9 and told not to comment them and also chastised them. P.W.9, the deceased and others came out of the college and were standing. Then, A.1 brought A.2 to A.4 along with him and warned P.Ws.8 and 9 and left the place. On the next day, according to P.W.8, after completion of classes, P.W.8, P.W.9 and the deceased came out of the class room. Then, it is alleged that the accused came and picked up a quarrel with the deceased. P.Ws.8 Page 5 of 43 and 9 chastised them and left. P.W.1, a relative of the deceased, was also present. P.W.1 also chastised A.1 and other students present there. After the incident, the deceased and P.W.1 went to purchase clothes. P.W.1 questioned the deceased about the attitude of A.1. The deceased informed P.W.9 and others that P.W.9 and others, including him, were teasing A.1 as 'Mypadu- Mypadu' and therefore, A.1 bore grudge against him. P.W.1 admonished the deceased not to have such quarrels. When P.W.1 and the deceased reached A.T.M. Centre, near BSNL Office, Nellore, it is alleged that A.1 to A.4 came there and pushed P.W.1 and the deceased towards ATM centre on the road. A.1 stated 'Ekkadiki ra naa kodakallara veluthunnaru'. Thereafter, A.1 beat the deceased with hands on his face. A.2 to A.4 instigated A.1 to beat the deceased. When A.1 again went towards the deceased, P.W.1 intervened and pushed A.1 questioning as to why he was beating the deceased. Then, A.1 asked A.2 to kill the deceased. On that, A.2 picked up a knife and was about to attack the deceased. Then, P.W.1 went to his Page 6 of 43 rescue and received a stab injury on his left arm above elbow. It is further alleged that A.3 and A.4 caught hold of the deceased and A.2 stabbed the deceased on the left side of his stomach. Thereafter, A.2 stated 'Chacharu ra naa kodukulu'. Thereafter, A.1 to A.4 ran away. Mean while, 20 to 30 persons gathered there, including P.W.6. The deceased received a bleeding injury. P.W.1 tried to secure an auto to shift the deceased to a hospital. Mean while, P.W.3, a friend of P.W.1, was going on a motor cycle on that way. P.W.1 stopped him and requested him to take the injured to hospital. P.W.3 took the deceased on his motor cycle to Jaya Bharath Hospital, Nellore. P.Ws.1, 4 and 5 helped the injured to sit on the back of the bike of P.W.3 and then P.W.1 was going by walk to the hospital. Meanwhile, P.W.1 informed P.W.2 about the incident. When P.W.1 was proceeding towards Leela Mahal Cine Theatre, P.Ws.3 and 4 took him in an auto to the hospital. P.W.3 advised P.W.1 to take treatment. The deceased became unconscious. P.W.17, Duty Doctor, examined P.W.1 and found a lacerated injury of 10 x 1 cm on antero Page 7 of 43 medical surface of left mid arm. P.W.16-Head Constable, IV Town police station, Nellore, received hospital intimation from Jaya Bharath Hospital, Nellore at 7.00 PM on 30.12.2010, immediately went to the hospital and recorded Ex.P1-statement of P.W.1. Ex.P27 is the endorsement of the Doctor on Ex.P1.
P.W.18, Sub Inspector of Police, IV Town police station, Nellore, on receipt of hospital intimation along with Ex.P1-statement, registered a case in crime No.304 of 2010 for the offences under Sections 324, 307 read with 34 IPC, under Ex.P29-FIR. On receipt of death intimation, he altered the Sections of law to the offences under Sections 324, 307, 302 read with 34 IPC and issued Ex.P30 altered FIR. P.W.19, Inspector of Police, Nellore Town police station, took up investigation, visited Jai Bharath Hospital, Nellore, examined P.W.1 and recorded his statement under Section 161 CrPC. On the next day i.e. on 31.12.2010, he observed the scene of offence and prepared Ex.P31-rough sketch of the scene of offence. He held inquest over the dead body of the deceased in the Page 8 of 43 presence of P.W.12 and others under Ex.P20-inquest report. At the time of inquest, P.Ws.2 to 5 were examined and their statements were recorded.
P.W.14-Civil Assistant Surgeon, DSR Government Hospital, Nellore conducted autopsy over the dead body of the deceased at about 3.50 PM on 31.12.2010 and issued Ex.P23A-post mortem certificate. According to the Doctor, the deceased died of shock and haemorrhage due to injury to heart (left ventricle). On 07.01.2011, P.W.19 arrested A.1 and A.2 in the presence of P.W.13 and others, and on interrogation, they gave confession, and pursuant to the same, police seized M.O.1-button knife from the bushes in the back side of the dilapidated building near C.A.M. High School, Nellore. After completion of investigation, P.W.19 filed the charge sheet.
5. In support of its case, prosecution examined P.Ws.1 to 19 and got marked Exs.P1 to P32, including Ex.P23A, besides case properties M.Os.1 to 3. After completion of prosecution side evidence, the accused were examined under Section 313 CrPC to explain the Page 9 of 43 incriminating circumstances appearing against them in the evidence of prosecution witnesses. The accused denied the same. D.W.1 was examined and Exs.D1 to D6 were got marked on behalf of the defence. The learned Sessions Judge, after appreciation of the evidence on record, convicted and sentenced the appellants, as stated supra. Challenging the same, the present Criminal Appeals are preferred.
6. Learned senior counsel Sri T.Pradyumna Kumar Reddy appearing for the learned counsel for appellant/A.1 and also representing the other counsel, submitted that there is absolutely no motive for the accused to cause death of the deceased; that the only reason that is alleged by the prosecution is that the deceased was teasing A.1 as 'Mypadu-Mypadu', and therefore, the accused bore grudge against the deceased; that the motive which is alleged by the prosecution is weak and the same cannot be accepted. The learned senior counsel further submitted that the learned Sessions Judge disbelieved the evidence of P.Ws.4 and 5, who are arrayed as eye-witnesses to the incident. Page 10 of 43 He further submitted that A.2 to A.4 are strangers and no test identification parade was conducted by police, and after lapse of five years of the alleged incident, prosecution witnesses identified A.2 to A.4 for the first time in the Court only, and in the absence of conducting test identification parade, it is highly difficult for any of the prosecution witnesses to identify strangers/unknown persons for the first time in Court. He submitted that the evidence of prosecution witnesses with regard to presence or participation of A.3 and A.4 is clearly an improvement and the same cannot be basis to convict A.3 and A.4. The learned senior counsel further submitted that entire investigation is perfunctory and police did not seize bloodstained clothes of P.W.1 or the deceased. He further submitted that medical evidence does not concur with the ocular testimony. According to him, M.O.1 is a sharp- edged weapon, but the opinion of the Doctor goes to show that the injury received by the deceased is a lacerated one, and the learned Sessions Judge has not appreciated the evidence on record in right perspective and erred in Page 11 of 43 convicting and sentencing the appellants. Hence, he prays to set aside the impugned judgment.
7. Sri D.Kodandarami Reddy, learned counsel for appellant/A.2, Sri T.Nagarjuna Reddy, learned counsel for appellant/A.3 and Sri Vijaya Saradhi, learned counsel for appellant/A.4, concurred with the submissions made by the learned senior counsel and adopted his arguments.
8. On the other hand, learned Assistant Public Prosecutor appearing for respondent-State contended that motive for the accused to cause death of the deceased would become insignificant since there are eye-witnesses to the incident. According to him, P.W.1 is the injured eye witness and he deposed about the incident in clear terms and nothing has been elicited in his cross-examination to tilt the case of prosecution. He further submitted that medical evidence does corroborate with the ocular testimony and a few discrepancies which occurred in the course of cross examination would not in any way go to the root of the case, which calls for interference by this Court to convert the order of conviction into an order of Page 12 of 43 acquittal. According to him, the judgment passed by the learned Sessions Judge is well reasoned and there are no grounds to interfere with the impugned judgment.
9. Now, the point that arises for determination is whether the prosecution is able to bring home the guilt of the appellants for the charges levelled against them, beyond reasonable doubt?
10. The deceased is son of P.W.2. P.W.2 is maternal uncle of P.W.1. According to P.W.1, on 30.12.2010 at about 5.00 PM, he was near Sanghamitra School. He called the deceased and stated that he had to purchase clothes for him. The deceased informed P.W.1 that he was near college and asked him to come over there by 5.30 PM. When P.W.1 went to the college, the deceased, P.Ws.8 and 9 were present there and they were chit-chatting. At that time, A.1 went there and questioned the deceased as to why he was talking about him and his girlfriend. A.1 threatened the deceased that he would do away with him. P.W.1 chastised the accused as they were all students. A.1 then left the place threatening with dire consequences. P.Ws.8 and 9 also left the place. Then, P.W.1 and the Page 13 of 43 deceased started going towards VRC Centre, Nellore by walk talking about the incident. The deceased informed P.W.1 that P.W.9 and others were teasing A.1 as "Mypadu- Mypadu" and the deceased also teased him like that twice or thrice and therefore A.1 bore grudge against him. P.W.1 admonished the deceased not to have any such quarrels. They both together went to ATM Centre near BSNL Office, Nellore. It was about 6.00 PM. Then, A.1 to A .4 went there and pushed P.W.1 and the deceased towards ATM Centre on the road. A.1 uttered towards the deceased as 'Ekkadiki ra naa kodakallara veluthunnaru'. A.1 beat the deceased with his hands on his face. A.2 to A.4 instigated A.1 to beat the deceased. When A.1 again went towards the deceased to beat him, then P.W.1 intervened and pushed A.1 questioning him as to why he was beating the deceased. A.1 asked A.2 to kill the deceased. A.2 took a knife and when he was about to give a blow on the deceased, P.W.1 went to rescue of the deceased and sustained a stab injury on left arm above the elbow. Thereafter, A.3 and A.4 caught hold of the deceased, A.2 Page 14 of 43 stabbed the deceased on left side of his stomach and then uttered 'chacharu ra naa kodukulu' and all the accused ran away by saying so.
11. On a perusal of Ex.P29-First Information Report goes to show that it is stated in the FIR that on the date of the incident, A.1 instigated A.2 to kill the deceased. When A.2 tried to stab the deceased with a knife, P.W.1 intervened and a blow struck on left elbow of P.W.1. Thereafter, once again, A.2 stabbed the deceased with knife on left side of the stomach abusing him to die. On that, blood started coming out from the stomach of the deceased. A perusal of the recitals in the FIR, there is no reference to the effect that A.3 and A.4 were holding the deceased nor facilitated A.2 to deal with a blow on the deceased. It is stated in the earliest point of time that A.3 and A.4 were standing beside the deceased. On a perusal of the evidence of P.W.1, it goes to show that the said aspect is clearly an improvement from the FIR to the evidence that has been recorded in the Court. If really, A.3 and A.4 caught hold the deceased, there is no reason Page 15 of 43 as to why the said fact has not been stated at the earliest point of time. In the absence of any recital in the FIR on the material aspect that A.3 and A.4 caught hold of the deceased nor facilitated A.2 to deal with a blow on the deceased, the present theory that A.3 and A.4 were holding the deceased, appears to be brought into existence after lapse of five years after due deliberations. The said version is clearly an improvement which would go to the root of the case. In view of the same, this Court has no hesitation to hold that the evidence of P.W.1 with regard to participation of A.3 and A.4 in commission of the offence, as alleged by the prosecution, is clearly an improvement and the same cannot be the basis to convict the A.3 and A.4.
12. P.W.2 is father of the deceased. According to his evidence, on 30.12.2010 at about 6.30 PM, he received information from P.W.1 that A.1 to A.4 stabbed the deceased and P.W.1. On that, P.W.2 reached Jaya Bharath Hospital, Nellore at about 6.45 PM. The deceased and P.W.1 were being treated by the Doctor. On questioning by P.W.2, P.W.1, who was undergoing Page 16 of 43 treatment, stated that A.1 to A.4 stabbed the deceased and himself. P.W.1 also explained the reason for the attack on the deceased.
13. P.W.3 is known person to P.W.1. According to his evidence, on the date of the incident at about 6.00 PM, he was going by motor bike from Z.P. Centre to V.R.C. Centre, Nellore and when he reached near ATM Centre, BSNL Office, Nellore, P.W.1 called him by his name and on that he went near P.W.1 and questioned him as to what happened. He noticed bleeding injury on the left arm of P.W.1 and blood oozing from left side of stomach of the deceased. P.W.1 asked him to take the deceased to Jaya Bharat Hospital, and P.Ws.4, 5 and 1 lifted the deceased on his motor bike and he took the deceased to the Emergency Casualty of the said hospital and thereafter P.W.1 came to the hospital in an auto.
14. P.Ws.4 and 5, who are alleged to be eye witnesses to the incident, in one voice, stated that they heard A.2 saying 'ray Dileep memu unnamu veella sangathi choodu'; that the deceased, P.W.1 and A.1 to A.4 Page 17 of 43 were present there; A.1 beat the deceased on his face and pushed P.W.1 aside; A.1 uttered to A.2 'Ashok anna manamu podichedaniki Vacchi Kottedi Entee, Podicheyi Na Kodukulu Iddarini'. It is stated that thereafter, A.3 and A.4 caught hold of the deceased and A.1 stabbed P.W.1, and when P.W.1 raised his hand, he sustained injury above the left elbow; that A.2 pushed P.W.1 aside after stabbing; then A.2 stabbed the deceased on the left side of his stomach with a knife; that the crowd shouted to catch hold of the accused and then A.2 shouted as 'chaccharu na koduku' and ran towards Anitha Theatre, Nellore.
15. Learned Sessions Judge opined that the evidence of P.Ws.4 and 5 runs in the same lines. According to the prosecution, they were coming on a motor bike at the time of the incident and noticed crowd at the scene of offence. P.Ws.4 and 5 were doing real estate business. Their evidence does not reveal how they got acquaintance with the deceased or P.W.1. It is relevant to state that P.W.1 does not know wherefrom P.Ws.4 and 5 came. The learned Sessions Judge further held that the Page 18 of 43 evidence of P.W.1 or P.Ws.4 and 5 does not establish how P.Ws.1, 4 and 5 got acquaintance with each other because they are in two different fields and therefore, the evidence of P.Ws.4 and 5 cannot be considered. Accordingly, the learned Sessions Judge disbelieved the evidence of P.Ws.4 and 5.
16. P.W.7 did not support the case of prosecution and he was treated as hostile by the prosecution.
17. P.W.6 was doing business in cool drink shop. According to him, he saw four persons quarrelling with two persons near Axis Bank ATM Centre, Nellore. He further deposed that four persons stabbed two persons and he can identify those persons, who stabbed. According to him, they are none other than A.1 to A.4 standing in the dock. He further deposed that he did not observe what had happened later due to fear. The accused are strangers to P.W.6 and it is difficult for anybody to identify the accused in the absence of test identification parade conducted by police.
Page 19 of 43
18. P.Ws.8 and 9 were the students of Krishna Chaitanya Degree College, Nellore, doing their B.Com. course along with the deceased and the accused. According to them, on the date of the incident, the accused quarrelled with the deceased. A.1 gave a complaint to P.W.10, who was Lecturer in Computers in the said college. Thereafter, the accused warned the deceased. On the same day evening, the accused went along with some other people at about 5.30 PM and warned P.Ws.8, 9 and the deceased, wherein A.2 to A.4 standing in the dock were brought by A.1. On the next day, after completion of classes, once again, the accused picked up a quarrel with the deceased. P.Ws.8 and 9 chastised them and went away. P.W.1 was present along with the deceased. On the next day morning, P.Ws.8 and 9 came to know about the said incident in T.V. Admittedly, both the witnesses P.Ws.8 and 9 did not witness the incident in question. They only spoke with regard to the earlier incident which transpired between the accused and the deceased. Page 20 of 43
19. P.W.10 is the Lecturer, who deposed that A.1 came to him and complained that his friends were commenting on him. Then, he called P.W.9 and the deceased and admonished not to comment on A.1. Two days later, he came to know that the deceased died near BSNL office, Nellore. It is thus established from the evidence of P.Ws.8 to 10 that there was a complaint made by A.1 against the deceased with regard to rediculating A.1 by the deceased and in connection with that, P.W.10 called the deceased and P.W.9 and admonished them not to make any comments.
20. As regards the contention of the learned senior counsel that because A.2 to A.4 are strangers, in view of non-conducting test identification parade by the police, would be fatal to the case of the prosecution, and identification of A.2 to A.4 by the material prosecution witness for the first time in the Court after lapse of five years has no value, it is pertinent to refer to a decision of Page 21 of 43 the Hon'ble Apex Court in Sheo Shankar Singh v. State of Jharkhand and another1, wherein it is held thus:
"46. It is fairly well settled that identification of the accused in the court by the witness constitutes the substantive evidence in a case although any such identification for the first time at the trial may more often than not appear to be evidence of a weak character. That being so a test identification parade is conducted with a view to strengthening the trustworthiness of the evidence. Such a TIP then provides corroboration to the witness in the court who claims to identify the accused persons otherwise unknown to him. Test identification parades, therefore, remain in the realm of investigation.
47. The Code of Criminal Procedure does not oblige the investigating agency to necessarily hold a test identification parade nor is there any provision under which the accused may claim a right to the holding of a test identification parade. The failure of the investigating agency to hold a test identification parade does not, in that view, have the effect of weakening the evidence of identification in the court. As to what should be the weight attached to such an identification is a matter which the court will determine in the peculiar facts and circumstances of each case. In appropriate cases the court may accept the evidence of identification in the court even without insisting on corroboration.1
2011 (20 ALD (Crl.) 360 (SC) Page 22 of 43
48. The decisions of this Court on the subject are legion. It is, therefore, unnecessary to refer to all such decisions. We remain content with a reference to the following observations made by this Court in Malkhansingh v. State of M.P. [(2003) 5 SCC 746 : 2003 SCC (Cri) 1247] : (SCC pp. 751-52, para 7) "7. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification Page 23 of 43 parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta Prashad v. Delhi Admn. [AIR 1958 SC 350 : 1958 Cri LJ 698] , Vaikuntam Chandrappa v. State of A.P. [AIR 1960 SC 1340 : 1960 Cri LJ 1681] , Budhsen v. State of U.P. [(1970) 2 SCC 128:1970 SCC (Cri) 343] and Rameshwar Singh v. State of J&K [(1971) 2 SCC 715:1971 SCC (Cri)638] .)"
21. Test identification parade is conducted only with a view to strengthen trustworthiness of evidence of a witness and it provides corroboration to the witness in the Court who claims to identify the accused person not known to him. It is also settled that identification of the accused in the Court by a witness constitutes substantive Page 24 of 43 evidence. The weight to be attached to such an identification is a matter which has to be determined by the Court in the peculiar facts and circumstances of each case. Therefore, non-conducting of test identification parade will not by itself is fatal to the case of prosecution.
22. A perusal of the entire evidence on record goes to show that the evidence of P.W.1 is crucial for the reason that he is the injured witness and his evidence has to be taken on a high pedestal. Except the evidence of P.W.1, there is no other evidence to connect the accused to the crime. In view of the said reasons, the evidence of P.W.1 has to be scrutinized carefully. P.W.1, who is relative of the deceased, was present at the college when there was argument between the accused and the deceased took place. He along with P.Ws.8 and 9 was present there. All of them chastised A.1 not to do so as they are students. Thereafter, P.W.1 and the deceased were proceeding to buy clothes for P.W.1. P.W.1 categorically deposed that he had seen A.1 to A.4 at close quarters and observed their actions at the college and at the place where the alleged Page 25 of 43 incident is said to have taken place. He spoke all the specific overt-acts against A.2 on the deceased and the injuries sustained by him would be sufficient for P.W.1 to identify A.2 in the Court. Having received the injury from the accused and having seen dealing with blow on the deceased, would not in any way depose falsely in identifying A.2. Therefore, it would constitute sufficient identification and absence of conducting test identification parade cannot be taken as a serious lapse in identifying the accused by P.W.1. In view of the said reason, this Court has no hesitation to hold that the prosecution established identity of A.2 as the assailant from the evidence of P.W.1.
23. The other contention raised by the learned senior counsel appearing for the appellants is that blood stained clothes of P.W.1 or the deceased were not seized by the prosecution and the same is fatal to the prosecution case. The learned Assistant Public Prosecutor appearing on behalf of the State submitted that merely because blood stained clothes were not seized by the prosecution, it Page 26 of 43 would not in any way be fatal to the prosecution case. On this aspect, it is pertinent to refer to a decision in Karri Nageswara Rao @ Bujji and another v. State of Andhra Pradesh2, wherein it is held that failure on the part of the police in seizing blood stained clothes by itself is not a ground to disbelieve presence of P.W.2 therein at the scene of offence. Therefore, mere non-seizure of blood stained clothes of either P.W.1 or the deceased, by itself, is not a ground disbelieve the presence of P.W.1 at the scene of offence.
24. Insofar as A.1 is concerned, except the accusation to the extent that he instigated A.2 to kill the deceased, there are no other incriminating factors so as to come to a conclusion that A.1 along with A.2 had common intention of causing death of the deceased. It is pertinent to mention here that all the accused, the deceased and P.W.1 had a quarrel prior to the incident. Merely because there is a quarrel, it cannot be inferred that A.2 would be carrying a knife like M.O.1 with an intent to deal with a 2 2016 (2) ALD (Crl.) 425 Page 27 of 43 blow on the deceased to kill him. A.1 was a student and it is quite common that in case of an altercation, a student would be hyper and go to the extent of uttering to kill him. By virtue of the same, it cannot be inferred that the other accused would go to the extent of stabbing the deceased. Except alleging the instigation, there is no other material to connect A.1 with the crime. It is relevant to mention here that there is no charge of Section 302 read with 109 IPC framed as against A.1. In the absence of such charge or without there being any appeal by the State with regard to the said fact, this Court is of the opinion that the offence under Section 302 read with 34 IPC would not attract as against A.1.
25. In Krishna Murthy @ Gunodu and others v. State of Karnataka3, the Hon'ble Apex Court held thus:
"26. Section 34 IPC makes a co-perpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34 to apply there should be common intention between the co- perpetrators, which means that there should be community of purpose and common design or 3 2022 LiveLaw (SC) 220=(2022) 7 SCC 521 Page 28 of 43 prearranged plan. However, this does not mean that co-perpetrators should have engaged in any discussion, agreement or valuation. For Section 34 to apply, it is not necessary that the plan should be prearranged or hatched for a considerable time before the criminal act is performed. Common intention can be formed just a minute before the actual act happens. Common intention is necessarily a psychological fact as it requires prior meeting of minds. In such cases, direct evidence normally will not be available and in most cases, whether or not there exists a common intention has to be determined by drawing inference from the facts proved. This requires an inquiry into the antecedents, conduct of the co-participants or perpetrators at the time and after the occurrence. The manner in which the accused arrived, mounted the attack, nature and type of injuries inflicted, the weapon used, conduct or acts of the co-assailants/perpetrators, object and purpose behind the occurrence or the attack, etc. are all relevant facts from which inference has to be drawn to arrive at a conclusion whether or not the ingredients of Section 34IPC are satisfied. We must remember that Section 34IPC comes into operation against the co-perpetrators because they have not committed the principal or main act, which is undertaken/performed or is attributed to the main culprit or perpetrator. Where an accused is the main or final perpetrator, resort to Section 34IPC is not necessary as the said Page 29 of 43 perpetrator is himself individually liable for having caused the injury/offence. A person is liable for his own acts. Section 34 or the principle of common intention is invoked to implicate and fasten joint liability on other co-participants.
28. The expression "common intention" should also not be confused with "intention" or "mens rea" as an essential ingredient of several offences under the IPC. Intention may be an ingredient of an offence and this is a personal matter. For some offences, mental intention is not a requirement but knowledge is sufficient and constitutes necessary mens rea. Section 34IPC can be invoked for the said offence also [refer Afrahim Sheikh [Afrahim Sheikh v. State of W.B., AIR 1964 SC 1263]. Common intention is common design or common intent, which is akin to motive or object. It is the reason or purpose behind doing of all acts by the individual participant forming the criminal act. In some cases, intention, which is ingredient of the offence, may be identical with the common intention of the co-perpetrators, but this is not mandatory.
29. Section 34 IPC also uses the expression "act in furtherance of common intention". Therefore, in each case when Section 34 is invoked, it is necessary to examine whether the criminal offence charged was done in furtherance of the common intention of the participator. If the criminal offence is distinctly remote and unconnected with the common intention, Section 34 would not be applicable. However, if the criminal Page 30 of 43 offence done or performed was attributable or was primarily connected or was a known or reasonably possible outcome of the preconcert/contemporaneous engagement or a manifestation of the mutual consent for carrying out common purpose, it will fall within the scope and ambit of the act done in furtherance of common intention. Thus, the word "furtherance" propounds a wide scope but should not be expanded beyond the intent and purpose of the statute. Russell on Crime, (10th Edn. p. 557), while examining the word "furtherance" had stated that it refers to "the action of helping forward" and "it indicates some kind of aid or assistance producing an effect in the future"
and that "any act may be regarded as done in furtherance of the ultimate felony if it is a step intentionally taken for the purpose of effecting that felony". An act which is extraneous to the common intention or is done in opposition to it and is not required to be done at all for carrying out the common intention, cannot be said to be in furtherance of common intention [refer judgment of R.P. Sethi, J. in Suresh [Suresh v. State of U.P., (2001) 3 SCC 673 :
2001 SCC (Cri) 601] ].
30. When we apply the aforesaid principles relating to applicability of Section 34 IPC to the facts of the present case, we feel that Thimmappa and Gopala are entitled to the benefit of doubt on the ground that it cannot be with certainty held that they had common intention viz. the injuries inflicted by Krishnamurthy Page 31 of 43 on Venkatarama after he had fallen down. They did not participate thereafter by physically assaulting or causing any injury to Venkatarama. They did not facilitate and help Krishnamurthy in the assault he perpetuated. We have no grounds to accept that they could have preconceived the brutal assault by Krishnamurthy who had put his knees on the neck and jumped on the chest of the deceased to cause the injuries resulting in his death. We cannot hold that these two accused could have premeditated the result which ensued when Krishnamurthy behaved and acted in the manner he did. Clearly, they had not joined Krishnamurthy when he had acted and have stood by. There is nothing to indicate that their acts, that is, holding the hands and pulling the legs of the deceased making him fall down, were done in furtherance of the common intention that Krishnamurthy would thereupon put his leg on the neck of the deceased, crush his chest and fracture the ribs. We would, in favour of the appellants Thimmappa and Gopala, hold that their acts cannot be primarily connected with the violence perpetuated by Krishnamurthy.
31. Given the acts attributed to Thimmappa and Gopala, the assault by Krishnamurthy and the resultant outcome were unexpected. We are also not prepared to hold that these two accused should have known the final outcome, or it was known to them, or it was a reasonably possible outcome of the Page 32 of 43 preconcert/contemporaneous engagement or a manifestation of mutual consent for carrying out a common purpose. We, therefore, would not hold them guilty for the offence under Section 300 or even Section 299IPC on the ground that they shared common intention as understood on application of Section 34 IPC."
26. In order to bring an accused under the purview of Section 34 IPC, it is essential that the prosecution has to establish that if the criminal offence done or performed was attributable or was primarily connected or was a known or reasonably possible outcome of the preconcert/ contemporaneous engagement or a manifestation of the mutual consent for carrying out common purpose, and then only, it falls within the scope and ambit of the act done in furtherance of common intention. On a careful perusal of the evidence on record, there is absolutely no such preconcert or premeditation on the part of the accused to establish that they shared common intention of causing the death of the deceased.
27. In respect of A.2 is concerned, he appears to be a rowdy element. P.W.1, except stating in cross- Page 33 of 43 examination that a stout person by name Ashok, no descriptive particulars have been given either in Section 161 CrPC statement or in Ex.P1. After lapse of five years, P.W.1, who is the injured witness, identified the accused in the Court. Since P.W.1 is injured witness who received a blow in the hands of A.2, he would be in a position to identify A.2 that he is the person who caused injury to him and also stabbed the deceased to death.
28. Sri D.Kodandarami Reddy, learned counsel appearing for A.2, submitted that there is no preconcert or premeditation on the part of A.2 in order to do away the deceased. A.2 had a knife in his back which he suddenly took out it and stabbed the deceased. This Court perused the record and comes to a conclusion that a single blow has been dealt by A.2 on the deceased. The learned counsel relied on a decision in Jagtar Singh v. State of Punjab4, wherein it is held thus: (paragraphs 7 and 8).
"7. Undoubtedly, PW 2 Dr H.S. Gill opined that the blow on the chest pierced deep inside the chest cavity resulting in the injury to the heart and this injury was 4 (1983) 2 SCC 342 Page 34 of 43 sufficient in the ordinary course of nature to cause death. The question is whether in the circumstances in which the appellant gave a blow with a knife on the chest, he could be said to have intended to cause death or he could be imputed the intention to cause that particular injury which has proved fatal? The circumstances in which the incident occurred would clearly negative any suggestion of premeditation. It was in a sudden quarrel to some extent provoked by the deceased, that the appellant gave one blow with a knife. Could it be said that para 3 of Section 300 is attracted. We have considerable doubt about the conclusion reached by the High Court. We cannot confidently say that the appellant intended to cause that particular injury which is shown to have caused death. There was no premeditation. There was no malice. The meeting was a chance meeting. The cause of quarrel though trivial was just sudden and in this background the appellant, a very young man gave one blow. He could not be imputed with the intention to cause death or the intention to cause that particular injury which has proved fatal. Neither para 1 nor para 3 of Section 300 would be attracted. We are fortified in this view by the decision of this Court in Jagrup Singh v. State of Haryana [(1981) 3 SCC 616 : 1981 SCC (Cri) 768 : (1981) 3 SCR 839 : 1981 Cri LJ 1136] . It was subsequently followed in Randhir Singh v. State of Punjab [(1981) 4 SCC 484 : 1981 SCC (Cri) 856] and Kulwant Rai v. State of Punjab [(1981) 4 SCC 245 :Page 35 of 43
1981 SCC (Cri) 826] . Following the ratio of the aforementioned decisions, we are of the opinion that the appellant could not be convicted for having committed murder of the deceased Narinder Singh. His conviction for an offence under Section 302 IPC and sentence of imprisonment for life are liable to be set aside.
8. The next question is what offence the appellant is shown to have committed? In a trivial quarrel the appellant wielded a weapon like a knife. The incident occurred around 1.45 noon. The quarrel was of a trivial nature and even in such a trivial quarrel the appellant wielded a weapon like a knife and landed a blow in the chest. In these circumstances, it is a permissible inference that the appellant at least could be imputed with a knowledge that he was likely to cause an injury which was likely to cause death.
Therefore, the appellant is shown to have committed an offence under Section 304 Part II of the IPC and a sentence of imprisonment for five years will meet the ends of justice."
29. In N.Ram Kumar v. State rep. by the Inspector5, the Hon'ble Apex Court held thus: (paragraph 20) "Thus, it emerges from the case law analysed herein- above for converting the sentence imposed under 5 Judgment of the Hon'ble Apex Court dated 06.09.1012 in Criminal Appeal No.2006 of 2023 Page 36 of 43 Section 302 to Section 304 Part II the facts unravelled during trial will have to be seen. In the facts of the case on hand, it is discernible that there was no premeditation to cause death or the genesis of occurrence and the single assault by the accused and duration of entire episode, were factors to adjudge the intention. The offence can be brought clearly within the ambit of Section 304 Part-II IPC. In the instant case it can be noticed that appellant and the deceased were in love with each other. The fact that deceased had stopped talking to the appellant and she was talking to her neighbour Mr. Sudhakar had ignited the mind of the appellant to be furious about the conduct of the deceased and he was upset about this change of attitude of the deceased. Even according to the testimony of PW-1, who is none other than mother of the deceased there was altercation between the appellant and the deceased and exchange of words between appellant and deceased with regard to their love affair. On being confronted by the appellant as to why the accused had stopped talking to him and as to why she was trying to develop friendship with Sudhakar and the answer given by the deceased had resulted in appellant's getting infuriated and in that spur of the moment he caught hold of her hair and banged her head to the wall which resulted in blood oozing out and on seeing this he ran away from the scene of the incident. Thus, the single assault by the appellant coupled with the duration of the entire Page 37 of 43 period having occurred for about 2-3 minutes would not be sufficient to infer that he had the intention to kill the deceased. Had there been any intention to do away with the life of the deceased, obviously the appellant would have come prepared and would have assaulted the deceased with pre-meditation. Yet another factor which cannot go unnoticed, the appellant had obviously approached the deceased and intended to confront her as to why she was not talking to him though they were in love and also to clear the doubts about she being friendly with Mr. Sudhakar (neighbour) and in this factual scenario, heated exchange of words have taken place and enraged by her reply the appellant has banged her head on the wall in a fit of fury, which cannot be inferred that he had any intention to take away her life, particularly when he was in love with her."
30. On a perusal of the aforesaid judgment goes to show that no premeditation to cause death or the genesis of the occurrence and a single assault by the accused and duration of entire episode, are the factors to adjudge the intention. Accordingly, in both the cases, the Hon'ble Apex Court had come to the conclusion that the offence cannot come within the purview of the offence punishable under Section 302 IPC and the same would come within Page 38 of 43 the purview of Section 304 Part II IPC. In similar facts and circumstances of the case, in the present case where a quarrel ensued between the accused and the deceased with regard to the fact that the deceased was teasing the accused as "Mypadu-Mypadu" and in connection with that, an altercation had taken place between A.1 and the deceased wherein A.1, being a student, raised cries to kill the deceased, upon which A.2 dealt a single blow on the stomach of the deceased, which proved to be fatal.
31. The learned A.P.P. submitted that the accused would not come within the purview of Section 304 Part-II IPC for the reason that the Doctor opined that injury No.1 is sufficient to cause the death by the weapon shown to him i.e. M.O.1. Since the Doctor opined that the injury that has been dealt by A.2 on the deceased is sufficient enough to cause death of the deceased, it can be held that A.2 had knowledge that the said blow would cause the death of the deceased. Where culpable homicide falls under any one of the four clauses of Section 300 IPC and none of the exceptions applies, the culpable homicide is Page 39 of 43 murder and is punishable under Section 302 IPC. Exception 4 of Section 300 IPC would be applicable if all the four conditions laid down are satisfied viz. (1) absence of pre-meditation; (2) there must be a sudden fight; (3) the killing must be in the heat of passion upon a sudden quarrel; (4) the offender should not have taken undue advantage or acted in a cruel or unusual manner.
32. Learned senior counsel appearing for the appellant stated that preceding the incident, a quarrel had ensued between the accused and the deceased, and that A.1 and the deceased were students studying in the same college and some misunderstandings arose between them as the deceased started commenting A.1 as 'Mypadu- Mypadu', and A.2, who was supporting A.1, in a spur of moment and heat of passion and without any premeditation, dealt with a single blow on the deceased with M.O.1, which proved to be fatal and there was no intention on the part of A.2 to do away with the life of the deceased and therefore, the act of the accused falls under Exception 4 of Section 300 I.P.C.
Page 40 of 43
33. Admittedly, the deceased and A.1 were studying in the same college. Some disputes arose between them as the deceased was teasing A.1 as 'Mypadu-Mypadu'. In connection with that, a quarrel ensued between the accused and the deceased, and during the said quarrel, A.2 dealt with a single blow on left side of stomach of the deceased with M.O.1-knife. In a fit of anger, as a quarrel ensued preceding the incident, A.2 lost control and gave the blow. The death is not instantaneous. Furthermore, A.2 has not taken any undue advantage of the situation. It is not a pre-planned attack. From the facts of the case, it can be said that there was no intention on the part of the appellant/accused to kill the deceased. Though appellant/accused has no pre-meditation to cause death of the deceased, at the same time, the accused must be having a knowledge that his act of giving a blow with a knife on the vital part stomach, would likely to give deadly results and may lead to death. A man is presumed by law to know the ordinary and natural as well as the necessary consequences of his acts. Therefore, the act committed by Page 41 of 43 A.2 squarely falls under exception 4 of Section 300 IPC. It is not an intentional act so as to bring the accused under the purview of Part-I of Section 304 I.P.C. Since A.2 must be having knowledge that his act is likely to cause death of the deceased, he is liable to be convicted for the offence punishable under Section 304 Part II I.P.C.
34. In view of the foregoing discussion, the conviction and sentence recorded in the judgment dated 14.12.2016 in Sessions Case No.277 of 2013 on the file of the I Additional Sessions Judge, Nellore against the appellants/ A.1, A.3 and A.4 for the punishable under Section 302 read with 34 IPC are set aside. The appellants/A.1, A.3 and A.4 are found not guilty of the charge under Section 302 read with 34 IPC and are accordingly acquitted of the said charge and they are set at liberty. Fine amounts, if any, paid by the appellants/A.1, A.3 and A.4 shall be refunded to them.
35. Further, the conviction and sentence recorded by the learned Sessions Judge in the impugned judgment against the appellant/A.2 for the offence punishable under Page 42 of 43 Section 302 IPC is set aside. However, the appellant/A.2 is found guilty of the offence punishable under Section 304 Part-II IPC, accordingly, he is convicted of the said offence and is sentenced to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs.2,000/- in default to suffer simple imprisonment for a further period of two months. The conviction and sentence recorded by the learned Sessions Judge in the impugned judgment against the appellant/A.2 for the offence punishable under Section 324 IPC is confirmed.
36. Accordingly, the Criminal Appeal Nos. 1280 of 2016 and 1295 of 2016 are allowed. Criminal Appeal No.1312 of 2016 is partly allowed.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
JUSTICE K. SURESH REDDY JUSTICE K. SREENIVASA REDDY 05.08.2024.
DRK Page 43 of 43 THE HONOURABLE SRI JUSTICE K.SURESH REDDY AND THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY COMMON JUDGMENT IN CRIMINAL APPEAL Nos.1280 OF 2016, 1295 OF 2016 & 1312 OF 2016 (Per the Hon'ble Sri Justice K.Sreenivasa Reddy) 05.08.2024 DRK