conviction and sentence of A-3 is however modified to Section 304 Part II and sentenced to 10 years imprisonment.
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.
2024 INSC 87
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2852 OF 2023
VELTHEPU SRINIVAS AND OTHERS ...APPELLANT(S)
VERSUS
STATE OF ANDHRA PRADESH …RESPONDENT(S)
(NOW STATE OF TELANGANA)
AND ANR.
J U D G M E N T
PAMIDIGHANTAM SRI NARASIMHA, J.
1. 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.
2. The case of the prosecution is that the accused 1 to 4
belonging to the same family, and the deceased, come from the
2
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.
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.
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.
5. In view of the gravity of the crime, the Circle Inspector of
Police (PW-18) took up further investigation and immediately
proceeded to the village to examine the scene of offence. He found
the body of the deceased in the front yard of A-4’s house. He
enabled PW-15 to take photographs of the dead body
(Exhibits P-21 to 30) and himself drew the sketch of the scene of
offence (Exhibit P-37). He also conducted an inquest over the body
of the deceased in the presence of PW-10 and
PW-12 (panch witnesses). The inquest report was marked as
Exhibit P-5. He also seized a stick (MO.4), control earth (MO.5),
blood-stained earth (MO.6), cotton full shirt (MO.7) and a baniyan
under cover of a panchnama. PW-18 recorded the statements of
PWs 4, 5, 6, 7, 8, 9, and 15. The prosecution maintained that PWs
1, 3, 4, 6, 7 and 8 are eyewitnesses to the incident.
6. The Judicial Magistrate First-Class (PW-16) also recorded the
statements of PWs 1 to 9 under Section 164 of the CrPC. The Postmortem over the dead body of the deceased was conducted by Dr
Victor Dinesh (PW-11) at 3PM on 15.11.2001 at the Government
4
Civil Hospital. PW-11, in his report, found 8 incised wounds, 3
partial amputations and 1 deep lacerated wound. It was his
opinion that the cause of death was due to cardio-pulmonary
arrest due to transaction spinal cord at atlanto occipital joint.
7. The Sub-Inspector (PW-17) is said to have apprehended all
the accused on 23.11.2001 and produced them before PW-18 in
his office. PW-18 recorded the confessional statement of the
accused in the presence of PW-13 and PW-14 (panch witnesses).
In pursuance of the confession, all the accused led him and the
panch witnesses to the field of one Mr. Appani Gangaiah at
Laximpur Shivar. There, A-1 recovered and showed an axe, A-2 a
sword and A-4 a knife which were all hidden behind the bushes in
the field. PW-18 seized these objects in front of PW-11 to PW-13,
later came to be marked as Exhibits MOs 1 to 3. PW-18 also
recovered a lungi belonging to A-1 and one belonging to A-2
(Exhibit MO’s 9 and 10, respectively). These material objects were
sent to a Forensic Lab in Hyderabad, the report of which is marked
as Exhibit P-16.
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.
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.
6
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.
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.
13. Findings of the Trial Court: The Trial Court had examined
the credibility of the Prosecution witness in great detail. According
to the Trial Court, PWs 1, 3, 4, 6, 7 and 8 were eyewitnesses to the
incident and their testimonies were consistent. Among them, PW6’s testimony was a clinching piece of evidence as he was privy to
the incident from the very beginning. He was subjected to intense
cross-examination with respect to his residence and other details
7
about the incident. Except for minor variations, the Trial Court
found his testimony unshaken, being consistent and natural. The
Trial Court found the testimonies PW-1, PW-3, PW-4, PW-7, PW-8
corroborating the incident of stopping an auto, dragging the
deceased out, and subsequently assaulting the deceased with
various weapons.
14. Collectively, the witnesses reiterated that A-1 stopped the
auto-rickshaw and pulled the deceased out and A-2 attacking the
deceased’s hands with a sword. As they reached A-4’s house, A-4
took the sword from A-2 and struck the deceased on his head. A4 also inflicted injuries by a knife. The common account about A3 is that he hit the deceased on the head with a stone. Accused
No. 1 continued the attack and hit the deceased with an axe.
Largely, these witnesses recounted a consistent narrative of the
attack, identifying the weapons used and the roles of each
accused.
15. Judgment of the High Court: According to the High Court,
the accounts of PWs 1, 3, 4, 6, 7 and 8, who witnessed the incident,
converge and are consistent with the injuries, weapons and motive
for the murder of the deceased. The High Court correctly relied on
the evidence of PW-6 who was in an auto-rickshaw along with the
8
deceased on the day of the incident. PW6’s evidence that he
boarded the auto-rickshaw of PW-5, followed by the deceased and
Rajitha (PW-9) joining him, was believed by the High Court.
16. The account of PW6 being corroborated by the evidence of
PWs 1, 3, 4, 7 and 8, the High Court held that the evidence
conclusively establishes the guilt of the accused beyond
reasonable doubt. The High Court also noted the submission
relating to the contradictions in the Complaint (Ex. P1) and the
testimonies of PWs 1, 3, 4, 6, 7 and 8, specifically relating to the
acts of assault, however, the High Court came to the conclusion
that they were minor in nature.
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 abovereferred analyses of the Trial Court and the High Court, and that
9
pertains to the conclusion on the culpability of A-3 for murder. We
will now examine the evidence as against A-3.
18. Evidence against Accused No.3: 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.
19. PW-1, in his examination-in-chief and cross-examination,
has respectively stated as follows:
Chief - “When I was trying to go near the deceased, A-3
threatened me saying that if I go there he would kill me.
A-3 hit the deceased with a stone.”
Cross - “I read Ex. P-1 complaint and it does not show
that A-1 and A-3 threatened me and other eye witnesses
to kill if we tried to rescue the deceased”
20. PW-3, in his examination-in-chief and cross-examination,
has respectively stated as follows:
Chief - “After hearing the cries of the said Rajitha and
Swamy I, PW1, Kona Mallesh Akireeddy Ramesh,
T.Odaiah rushed to the spot. By the time we reached the
spot the deceased was lying on ground with injuries and
10
on seeing us A-3 took a stone and gave threats to us
saying that he would hit us if we go there.”
Cross - “It is not true to say that I did not state before
the police that when land other eye witnesses were
going near· the place of the incident A-3 armed with a
stone threatened to kill us. It is not true to say that for
the first time before this court I am deposing that A-3
armed with a stone threatened me and other witnesses
to kill”
21. P.W. 4, in his examination-in-chief, has stated as follows:
“A-3 took a stone and hit on the head of the deceased.”
22. P.W. 6, in his examination-in-chief, has stated as follows:
“A-3 took a stone and hit on the head of the deceased.”
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.
24. As per the post-mortem report, the cause of death is “cardio
pulmonary arrest due to transaction spinal cord at atlanto occipital
11
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.
25. 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.
26. In fact, Victor Dinesh (PW-11), who gave the post-mortem
report had indicated the injuries as under:
“1. Incised wound extending from right ear to left cheek
19 cm long 6 cm deep 2 mm wide grievous sharp
weapon, Ante mortem.
2. Incised wound on the right eye brow (4cms) simple
sharp weapon Ante mortem.
3. Incised wound on the left side of fore head about 9
cms above left eye brow measuring 8 cms sharp
weapon Ante mortem.
4. Incised wound on left shoulder measuring 4 cm long
3mm wide. Sharp weapon ante mortem.
12
5. Incised wound on right should of 8 cm long 1 ½ cm
wide sharp weapon, ante mortem.
6. 5 cm x 6 Incised wound (slice) on the vertex. Sharp
weapon ante mortem.
7. 8 cms long incised wound backs of left wrist, sharp
weapon ante mortem.
8. 12 cms incised wound on the front of left hand,
sharp weapon, ante mortem.
9. Partial amputation of middle 3 fingers of left hand,
ante mortem.
10. Partial amputation of right thumb. Measuring 2 cms
sharp weapon ante mortem.
11. Partial amputation of right index finger measuring 3
cms sharp weapon, ante mortem.
12. Deep lacerated wound on the back of neck
measuring 18 cms 7 cms with complete transaction
of spinal card and Atlanta occipital joint. Blunt
weapon, ante mortem.”
27. It is evident from the evidence of PW-11 that the deceased
suffered 12 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.
28. 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
14
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….
29. 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 death1, a single blow on head with a hammer2
and lack of cogent evidence of the eye-witnesses that the accused
shared a common intention to commit murder3 as some factors to
commute a sentence from Section 302 to Section 304 Part II IPC.
30. Returning back to the facts of the case, there is certainly no
escape from coming to the conclusion that A-3 should have had
the knowledge that the use of a stone to hit the head of the
deceased is likely to cause death. However, as demonstrated
1 Bawa Singh v. State of Punjab, 1993 Supp (2) SCC 754. 2 Sarup Singh v. State of Haryana, (2009) 16 SCC 479. 3 Ghana Pradhan & Ors. v. State of Orissa, 1991 Supp (2) SCC 451.
15
before, the evidence is insufficient to deduce a conclusion that he
shared a common intention with the other accused to commit the
murder of the deceased. Considering the role that A-3 has played,
we hold him guilty of the offence under Section 304 Part II IPC.
31. 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.
32. 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
16
allowed by altering the conviction under Section 302 to Section
304 Part II IPC.
33. Pending applications, if any, are disposed of.
……..……………………………….J.
[B.R. Gavai]
.………….………………………….J.
[Pamidighantam Sri Narasimha]
New Delhi;
February 06, 2024
