Court Hyderabad v. Mythili

Counsel for the Appellant : Sri V. Mythili Counsel for the Respondents : Sri Arun Kumar Dodla Additional Public Prosecutor Sri M. Vivekananda Reddy Assistant Public Prosecutor The Court delivered the following: THE HO.NOURABLE SRI JUSTICE K.SUREND]}II AND THE HOIIOURABLE SRI JUSTICE E.V.VENUGOPAL CF'IMINAL APPEAL No. 2869 of 2O18 JUDGMENT: (p,er Lre Hon'ble Sri Justrce K.SURENDERT This appr:al is filed by the appellant/accused, aggreued by the conviction reccrled by the Principal Sessior:s Judge, Mahabubnag,ar', iT S.C.No. 110 of 2Ol7 dated29.01.2018, convicting the appellant. trnrle r Sections 3O2 ald 380 of the Indian Fenal Code and sentencingl Jrirn to undergo life imprisonment ard t() pay a fine of Rs.1,000/ fo.'the offence under Section 302 of IPrl; and to undergo Rigorou.s lmprisonment for four years and 1.o p.1/ a fine of Rs.SOO/- for th,: cffence under Section 380 of the Irrdian Penal Code. Both the sentences shall run concurrently.

2. Heard lezLr.ned counsel for the appellant and Sri Anrn Kumar Dodla, learnec Aclditional Public Prosecutor, Sri lM.V vekananda Reddy, learrre,l A ssistalt Public Prosecutor appeari:.r1; for the respondent-Srta ti:

3. The cas;e of 1he prosecution is that the deceased, lrte Bokka Kondaiah (he ,re.irr,r1ter referred to as 'the deceased), was; [he father of PWs.1 and 2, ,and after the death of his wife, he wzrs r,,rs,iding in a house at flf2rnral1prlt. The deceased was occasionally tetken care of by 2 PW.3, the daughter of PW. 1, who was studying in Nawabpet. Since the deceased was selling arrack illegally and was keeping some male consumers with him in his house during night times, PW.3 preferred to sleep in the house of her relatives in Nawabpet.

4. The appellalt, along with PWs.5 to 7, was a regular customer of the deceased, and three months prior to the death of the deceased on O1.O2.2015, the appellant committed theft of Rs.4,000/- from the deceased, and the deceased asked the appellant not to come to his house thereafter. However, on OI.O2.2Ol5 at about 7.OO p.m., when PWs.S to 7 came to the house of the deceased to consume arrack, the appellant too came with a request to the deceased to allow him to consume arrack, but the deceased chided him for having committed theft of cash from his house. The deceased refused to give arrack to the appellant at that time. PWs.5 to 7 consumed arrack and left for their houses. At about 9.O0 P.M., the appellant again approached the deceased and requested him in several ways to give arrack, and ttre appellant also preferred to sleep in the house of the deceased. The deceased asked PW.3 to arrange beds for him and the appellant, and asked her to leave to sleep at the relatives' house. c

5. The appelle rLt, having found the deceased in pc s session of cash of Rs.8 50/ - tried to snatch away the same frorn the deceased and, when tLLe cleceased resisted, the appellant sq ueezed his testicles and alsc :rampled his scrotum with his legs. ,\r; a result, the deceased die<l of haemorrhage and blunt injury ,-o tl.rt: testicles. The appellant rle,<:amped with the cash of Rs.850/- belong;ing to the deceased. At aborrl 5.3O A.M., the appellant again vir;itertthe house of the deceas;erl tc hnd out whether the deceased was zLlive or not, ald on frnding lJrt: deceased lying dead, the appellzrnt, suspecting some blood st;1ir s on his clothes, immediately werrt t:) a nearby public tap ol)posirte the house ald washed his hancls and clothes. PW.4, the imm,:cLate neighbour to the house of the deceas,ed, found the appellant corr ing out of the house of the deceased a.rr1 washing his clothes ancl hands. Soon thereafter, PW.3 went to tl:Le house of the deceased as L sual and, to her surprise, she founC ttLe deceased lying dead. F'W.3i immediately informed PWs.1 and 1l ,u,ho are the daughters of th.e cle ceased, and PW. 1 1, who is the husba: r<l of PW.2 After few hours, ell of them reached the house of the derx:ased and found the derLd bcdy of the deceased.

6. PW. 1, tra.zing come to know about the facts throrrgh pWs.3 and 4, lodgecl JI>r F l-report with pW. 14, the then Su.b,Inspector of Police, Nawabpet I,.S., at about 12.30 p.m., on 02.O2.2015, and 4 based on the same, PW. 14 registered Ex.P15-FIR against the appellant for the offence under Section 302 of IPC. PW. 13, the then Inspector of Police, Mahabubnagar Rural Circle, took up the investigation and, upon visiting the scene of offence, observed the scene of offence under Ex.P12-crirne details form-cum-rough sketch prepared in the presence of PWs.8 and 9. He a-lso conducted an inquest over the dead body from 1.30 P.M. to 3.O0 P.M. in the presence of the same panch witnesses under Ex.Pl4-inquest report' The dead body of the deceased was shifted to the District Hospital, Mahabubnagar, where PW. 10 conducted an autopsy over the dead body in the mortuary of the said hospital and collected the viscera and hyoid bone to be sent to the FSL, Hyderabad, for further investigations. As per Ex.P8-report, received from the FSL, Hyderabad, no poisonous substance was found in the viscera, and as per Ex.P1O, no fracture of hyoid bone was found. PW'10 issued Ex.P9-final opinion, thereby holding that the death of the deceased was due to haemorrhage and blunt injury to the testicles' On O}.O2.2OI5, based on reliable information, PW. 13 apprehended the accused at his house in Nawabpet and requested PW'12-the VRO', and LW. l2-G.Gopal, another V.R.O., to question the appellant' Accordingly, they questioned the appellant. The appellant confessed to his guilt and produced MO.l-cash of Rs'450/-, which he q confessed tc have retained out of the cash of Rs.85O/- stolen from the decease<l ,ft,:r' committing the murder of the dr:ceas,:d, stating that he had sperit an amount of Rs.4OO/- for his nt:erjs,. MO.1 was seized by PrM. 1i3 [rom the possession of the appeJlan. under the cover of Ex.Pl L ,c:onfession-cum-seizure panchana:rra, irafted at about 9.3o a.nr. "he appellant was brought to the potice station and thereafter proclured before the learned Judicia-l Magistr.ate of First Class, Special tr{obile, Mahabubnagar, for juciicia I custody. Subsequentllr, the appellalt was enlarged on bail grar:.ted by the Sessions Courr. rJn transfer of pW.l3, pW. I5, wh,t was his immediate silr,rc( ssor, took up the further investillation and produced MCts 2 .c 4-clothes of the deceased, which were seized by PW. 10 at the tirrLr: of conducting the autopsy over the dt,ad body of the deceased, rt:fore the Court. Upon completio n of the investigation, l.e hled the charge sheet,. thereby allegir,g that the appellant coramit -e'd the offences punishable under ser:1ions 302 artd 380 of IP,l.

7. The lear-n,:c[ liessions Judge, on the basis of :ircrr.rrstantial evidence, fou.d that it was the appelrant who had caLrsec t.he death of the deceast:d Reliance was praced on the evidence of )rMs.2 and 4, and further, thr: recovery of the amount from the apoell,,urt. 6

8. Learned Counsel appearing for the appellant would submit that the 'last seen' theory is not sufficient to conclude that it was the appellant who had committed the murder. Unless the last seen' circumstance is corroborated with other evidence, it cannot be inferred that the appellant committed the murder. Even according to PW.4, she only saw the appellant coming out of the house of the deceased and washing his hands at 5.3O A.M. However, PW.3 states that she found the dead body of the deceased at 5.00 A.M. Even according to the prosecution, the deceased was selling illicitly brewed liquor to the villagers, and several customers used to sleep in the said house- It cannot be said that the appellant was the person who committed the murder, as it could have been any of the customers.

9. Alternatively, the learned counsel submits that the injury was caused to the testicles and the cause of death was Cardio Respiratory Failure as a result of blunt injury to the testicles.

10. The Honourable Supreme Court in State of Karnataka a. Shiaalingaiah alio-s Handigiddar, held that squeezing of the testicles by the accused would fall within the offence under section 325 ofIPC and not under Section 3O2 ofIPC. t t988 lsupp) Supreme Court Cases 533 7

11. Learned C,ru r;el for the appellant further submits ttrrrt, based on the Judllnrer,t of Shiaalingoiah's case (xtpra 1) the Honourable SuprrenLe Court in State of Karnataka v, Mohamed Nazeer atiso-s Ba.,bu2 held ,based on the facts of the cas,,r, that the injury caused to rhe deceased by kicking on their pri 'rttte parts would be an o:fen,:e under Section 304 Part II of Indian Penal Code.

72. Learned Assir;tant Public Prosecutor, on the other he.nd, would submit that the ar t of the appellant in kicking the decea ;t:d on his testicles would reflect his knowledge, ald the learned Sessions Judge had riglrtly oc,nvicted the appellant under Section 3,)il of IPC.

13. The app,el larrt was seen coming out of the hou sr: of the deceased by PW.4. PW.3, who is the grand-daught,:I'of the deceased, went '-o his house early in the morning. At':hal 1.ime, she found the dect:asecl dead. In the complaint frled by PW.1, ,rzho is the daughter of tt.e dec:ased, she clearly stated that PW.3 wrr.r; staying along with the d.r'ceased in his house, and also menl ioned the information g:ven by PW.4 about the appellant coming r>rrt of the house of the clet:eased in the morning just before the deceitsed was found dead. ? lZOOll Z Supreme Court Cars:s 444 L4. The appellant claims that he has been falsely implicated. However, the circumstances which were narrated by the prosecution witnesses at the earliest point of tirne are convincing and as follows i) the appellant being seen coming out of the house of the deceased; ii) the names of PWs.3 and 4 being mentioned in the complaint; and iii) the deceased was found dead with injuries to his testicles, when PW.3 went inside after the appellalt came out of the home.

15. The doctor who conducted the post-mortem found that the death was on account of a blunt injury to the testicles resulting in Cardio Respiratory Failure.

16. Basing relialce on the Judgment of the Honourable Supreme Court in Mohamed. Na.zeer's case (stpra 2), the injuries that were caused by the appellant would fall under Section 304 part II of IPC. Accordingly, the conviction of the appellant is converted to Section 304 Part II of IPC.

17. It is submitted by the learned counsel for the appellant that the appellant was in jail for 5 Y, years before being released on bail.

18. The learned Assistant Public Prosecutor submits that there are no other questionable antecedents and the appellant is not involved in aly other criminal cases. 9

19. Keeping ir vit:w that the appellant has depen'lent.s to look after, and tht:rt: tre ing no other cases against him w,t deem it appropriate to recl r,:e the sentence of imprisonment lo 5i Y, years, i.e., the period a [rr: a,ly undergone by him.

20. Accordingl'7, C riminal Appeal is partly allor,t'ed, rech- cing the sentence of imprisr,rLment to the period already undergone //TRUE COPY// Sd/. K. ISRI}IN/ASA RAO JOINT RIEGISTRAR I SECTI()].I OFFICER To, 'l.ThePrincipalSer;s,ionsJudge,MahabubnagarDistrict(WithR--r:ords). 2. The Station House Officer, Nawabpet Police Station, Mahabubna gar District. 3. The superirrte nclort central Prison, cherlapalli, Medchal-Malkajg ir District. 4. One CC to llri \t l/lythili, Advocate [OPUC] 5. Two CD Copies DUPSL ry. HIGH COURT DATED:'171041202!i JUDGMENT CRLA.No.2869 of 20 ltl -'a-==r irna si ,{ C -) It 1i it i 6 {t .1" "* PARTLY ALLOWINCi HE CRIMINAL APPEAL 1 :\ 1 --7r)