Challenge against the conviction under section 302 IPC
- This criminal appeal by appellants (accused 1 to 4) is against the concurrent conviction under Section 302 read with Section 34 and sentence for life imposed by the Trial as well as the Telangana High Court. For the reasons to follow, while we confirm the judgment and sentence with respect to A-1, A-2 and A-4, the conviction and sentence of A-3 is however modified to Section 304 Part II and sentenced to 10 years imprisonment. The details of the crime, trial, decisions of the Courts, followed by our analyses and conclusions are as follows.
Case of the prosecution
2) The case of the prosecution is that the accused 1 to 4 belonging to the same family, and the deceased, come from the same village – Janda Venkatpur, Asifabad, Telangana. It is alleged that the sister of the deceased and the wife of A-4 were political aspirants and they contested the Gram Panchayat elections. In the said elections, the sister of the deceased succeeded and the wife of A-4 lost and that, unfortunately, led to an animosity between the two groups, eventually leading to the murder of the deceased which is described as follows.
Witnesses introduction
3) On 15.11.2001, at about 8AM, the deceased was going to Luxettipet on some work in an auto-rikshaw. In the same autorikshaw, one Sanga Swamy @ Thruputhi (PW-6) and Smt. Chetimala Rajitha (PW-9) were travelling as co-passengers. When the auto reached the house of A-4, it is alleged that A-1 stopped the auto-rickshaw and dragged the deceased out by pulling his legs. At the same time, A-2 joined A-1 and both the accused dragged the deceased towards the house of A-4. At that point, it is alleged that A-1 to A-4 attacked the deceased with an axe, a sword, a stone and a knife, thereby inflicting severe bleeding injuries leading to death of the deceased on the spot.
Registration of FIR
4) The son of the deceased, Kona Kiran Kumar, later examined as PW-1, being an eyewitness, proceeded to the police station and reported the incident at about 9PM by way of a complaint (Exhibit 3 P-1). The Sub-Inspector of Police (PW-17), Luxettipet received the complaint and registered an FIR (Exhibit P-32), and took up the investigation. He then recorded the statement of PW-1.
Charge-sheet and committal
8) After completion of the above referred investigation, a chargesheet was filed on 09.01.2002. The Judicial First-Class Magistrate, Luxettipet took cognizance of the offence under Section 302 read 5 with Section 34 of IPC, against all the accused. On production of the accused, the Magistrate furnished copies of the charge-sheet and other connected documents and committed the case to the Court of Sessions and the Learned Sessions Judge numbered the trial as Sessions Case No. 523 of 2003. After the charges were framed, the accused pleaded not guilty and sought trial.
Trial and conviction
9) At the trial, the prosecution examined 18 witnesses being PW-1 to PW-18, and marked 37 documents and 10 Material Objects (MO’s). After the closure of evidence, the accused were examined under Section 313 CrPC with reference to the incriminating material found against them in the evidence of the prosecution witnesses, and they denied the same. There are no defence witnesses.
10) The Trial Court, by its elaborate judgment dated 24.02.2005, found all four accused guilty for the murder of the deceased and convicted them under Section 302 read with Section 34 of the IPC. Accordingly, they were sentenced to undergo imprisonment for life and to pay a fine of Rs. 500 each, in default, to undergo simple imprisonment of one month. All the accused appealed to the High Court.
High court initially acquitted all the accused – further Hon’ble Supreme Court set aside the judgment of High court and remanded back
11) For the completeness of narration, we may indicate that the High Court initially acquitted all the accused by its judgment dated 21.06.2007, but in appeal to this Court, their conviction and sentences were set-aside, and the criminal appeal was remanded back to the High Court for fresh consideration. It is in this background that the order impugned came to be passed by the High Court.
On remand Hon’ble High Court has dismissed the criminal appeals hence this criminal appeal
12) After remand, the High Court confirmed the judgment of the Trial Court and dismissed the criminal appeals. The Special Leave Petition filed by the accused was admitted on 01.08.2022 and this is how we have heard Shri Gaurav Agrawal, learned counsel for the appellants and Shri Krishan Kumar Singh learned counsel for the State and Shri Sirajudeen, learned senior counsel for the respondent No. 2.
High Court and Trial court stands out in the culpability of A-3
17) Though the High Court saw that the trial court extensively examined the evidence and considered all the submissions, it has nevertheless considered the evidence afresh and after a detailed examination, arrived at the same conclusion. We have given our anxious consideration and have scrutinised the evidence of all the eye-witnesses in detail. We are in full agreement with the decision of the Trial Court and the High Court. Their analyses and conclusions are based on correct appreciation of evidence and law. However, there is one aspect which stands out in the above referred analyses of the Trial Court and the High Court, and that pertains to the conclusion on the culpability of A-3 for murder. We will now examine the evidence as against A-3.
Evidence against Accused No.3
18) To commence with, the FIR states that A-3 hit the deceased on the head, thereby causing death. The Chargesheet states that A3 used a stone to do the same. However, no further details have been provided. Further as we examine the testimonies of all the eyewitnesses the following picture emerges. PWs 1, 3, 4 and 6 state that the A-3 had used a stone to hit the deceased’s head. PW-7 and PW-8 do not speak about his role.
Apex Court after considering and placing reliance on the Chief and Cross-examination of P.W-3 has held:
Both Trial and High Courts have mechanically drawn inference against A3
23) A reading of the judgment and order passed by the Trial as well as the High Court would indicate that neither the prosecution or defence, nor the court, have focussed on the role of A-3 as evidenced by the oral and documentary evidence. There is nothing to attribute A-3 with the intent to murder the deceased. In fact, both the Courts have mechanically drawn an inference against A3 under Section 34 of the Act merely based on his presence near the scene of offence and his familial relations with the other accused.
Apex court analysing the role of the accused in the crime
- As per the post-mortem report, the cause of death is “cardio pulmonary arrest due to transaction spinal cord at atlanto occipital joint”. The atlanto occipital joint is at the back of the neck, which is the exact place where A-1 assaulted the deceased with the help of an axe. This axe was then taken by A-2 and thereafter, by A-4, who also assaulted the deceased. All the eye-witnesses are clear in this account. In other words, it was only A-3 who never took the axe in his hand. He only used a stone to assault the deceased.
A-3 did not have intention to kill the deceased
- Considering the statements of the eye-witnesses, coupled with the post-mortem report, it is not possible to contend that A-3 would have had the intention to commit the murder of the deceased and as such, he cannot be convicted under Section 302 IPC.
A-3 did not share common intention
- It is evident from the evidence of PW-11 that the deceased suffered injuries, of which 10 are caused by sharp-edged weapons. The 11th injury is a partial amputation of the middle 3 fingers of left hand. The final injury is a lacerated wound on the back of neck measuring 18 cms x 7 cms with complete transaction of spinal cord and atlanto occipital joint. The Trial Court and the High Court have not analysed the evidence as against A-3. They have proceeded to convict him along with others under Section 302 with the aid of Section 34. The cumulative circumstances in which 13 A-3 was seen participating in the crime would clearly indicate that he had no intention to commit murder of the deceased for two clear reasons. Firstly, while every other accused took the axe used by A1 initially and contributed to the assault with this weapon, A-3 did not wield the axe at any point of time. Secondly, A-3 only had a stone in his hand, and in fact, some of the witnesses said that he merely threatened in case they seek to intervene and prevent the assault. Under these circumstances, we hold that A-3 did not share a common intention to commit the murder of the deceased. Additionally, there is no evidence that A-3 came along with the other accused evidencing a common intention. The description of the incident is that when the deceased came to the scene of occurrence, A-1 dragged him to the house of A-4, and the other accused joined A-1. In this context, A-3 picked up a stone to assault the deceased.
A-3 was not liable for section 302 IPC r/w 34 IPC but is liable for section 304 part. II IPC
- Even though, A-3 might not have had the common intention to commit the murder, nevertheless, his participation in the assault and the wielding of the stone certainly makes him culpable for the offence that he has committed. While we acquit A-3 of the offence under Section 302 read with Section 34 of the IPC, he is liable for the offence under 304 Part II IPC. The law on Section 304 Part II has been succinctly laid down in Camilo Vaz v. State of Goa, (2000) 9 SCC 1, where it was held that:
14. This section is in two parts. If analysed, the section provides for two kinds of punishment to two different situations: (1) if the act by which death is caused is done with the intention of causing death or causing such bodily injury as is likely to cause death. Here the important ingredient is the “intention”; (2) if the act is done with the knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death. When a person hits another with a danda on a vital part of the body with such force that the person hit meets his death, knowledge has to be imputed to the accused….
Previous Judgments of Apex court regarding commuting sentence
- In the past, this Court has considered factors such as lack of medical evidence to prove whether the act/injury was individually sufficient to cause death [Bawa Singh v. State of Punjab, 1993 Supp (2) SCC 754], a single blow on head with a hammer [Sarup Singh v. State of Haryana, (2009) 16 SCC 479] and lack of cogent evidence of the eye-witnesses that the accused shared a common intention to commit murder [Ghana Pradhan & Ors. v. State of Orissa, 1991 Supp (2) SCC 451 as some factors to commute a sentence from Section 302 to Section 304 Part II IPC.
Exact role of participation of A-3
- The perusal of the evidence would reveal that it is not the case of the prosecution that A-3 was along with the other accused while the deceased was dragged to the house. The deposition would reveal that after the other accused assaulted the deceased with sword, A-3 came thereafter and assaulted the deceased with stone lying there. We, therefore, find that the prosecution has not been in a position to establish that A-3 shared the common intention with the other accused to cause the murder of the deceased.
Sentence modified
- For the reasons stated above, we uphold the conviction and sentence of A-1, A-2 and A-4 under Section 302 read with Section 34 IPC and dismiss their Criminal Appeal No. 2852 of 2023 against the judgment of the High Court of Telangana in Criminal Appeal No. 308 of 2005 dated 26.04.2022. We acquit A-3 of the conviction and sentence under Section 302 read with Section 34 and convict him under Section 304 Part II and sentence him to undergo imprisonment for 10 years. To this extent, the appeal of A-3 is allowed by altering the conviction under Section 302 to Section 304 Part II IPC.
Party
VELTHEPU SRINIVAS AND OTHERS …APPELLANT(S) VERSUS STATE OF ANDHRA PRADESH …RESPONDENT(S) (NOW STATE OF TELANGANA) AND ANR – CRIMINAL APPEAL NO. 2852 OF 2023 – 2024 INSC 87 – February 06, 2024
Velthepu srinivas and others vs. State of A.P – 181112022_2024-02-06
