CRLA/503/2017 of JADAV DATHURAM PATEL, NIRMALA DT AND 4 OTRS., Vs THE STATE OF TELANGANA, REP PP., on 31 December 2024

1. Jadav Dathuram Patel, S/o. Potha.ii Patel, Age 59 years, Occ Agriculture

2. Jadav Pothaji Patel, S/o. Dathuram Patel, Age 32 years, Occ Agriculture

3. Jadav Santosh Patel, S/o. Dathuram Patel, Age 29 years, Occ Agriculture

4. Jadav Bharathibai, Wo. Dathuram Patel, Age 54 years, Occ Agriculture

5. Jadav Saraswathibai, Wo. Pothaji Patel, Age 29 years, Occ AgricultureAll are R/o. Hangirga Village, Tanoor Mandal, Adilabad District, presentlyNirmal DistrictAll are R/o. Hangirga Village, Tanoor Mandal, Adilabad District, presentlyNirmal District

...Appellants / Accused No. 1 to 5

AND

The State of Telangana, through Circle lnspector of Police, Mudhole, NirmalDistrict, Rep. by Public Prosecutor, High Court of Judicature at Hyderabad

...Respondent / Complainant

Counsel for the :Appellants

Sri C Vasundhara Reddy

Counsel for the Respondent :

Sri Arun Kumar DodlaAdditional Public Prosecutor The Court delivered the following Judgment :

THE HONOURABLE SRI JUSTICE K.SUR.ENDERANDTHE HONOURABLE SHRI JUSTICE J.ANIL KUMAR

CRTMINAL APPEAL No.503 0F 20.17

JUDGMENT: (per Hon'ble Sri Justice K.Surender)

This appeal is filed by appellants/accused Nos.l to 5aggrieved by the judgment, dated 20.04.2017, passed inaggrieved by the judgment, dated 20.04.2017, passed inS.C. No.4 1 2 of 2013 on the file of principal Sessions Judge,at Adilabad, convicting them for the offences punishableunder Sections 747 , 148, 442, 342, 3O2, 506 (ii) read withSection 149 of Indian Penal Code (for short IpCJ.at Adilabad, convicting them for the offences punishableunder Sections 747 , 148, 442, 342, 3O2, 506 (ii) read withSection 149 of Indian Penal Code (for short IpCJ.

2. Heard learned counsel for the appellants and learnedAdditional Public Prosecutor for respondent-State.3. Accused No.4 was released frgm jail on grant ofremission by the Government vide G.O.Ms.No.37. Hence,the present appeal is heard insofar as accused Nos.l, 2, 3and 5-

4. Briefly, the case of the prosecution is that accusedNos.2 and 3 are the sons of accused Nos.l and 4. AccusedNo.5 is the wife of accused No.2. All the accused and the deceased are residents of Halgirga Village andagriculturists. Prior to the date of the incident, pW.8 (elderbrother of accused No.1) wanted to sell his land of 24guntas. Accused No. 1 offered to purchase the same atlesser price, but PW.8 sold the said land to the deceased ata higher price. Therefore, accused quarreled with thedeceased for purchasing the land.agriculturists. Prior to the date of the incident, pW.8 (elderbrother of accused No.1) wanted to sell his land of 24guntas. Accused No. 1 offered to purchase the same atlesser price, but PW.8 sold the said land to the deceased ata higher price. Therefore, accused quarreled with thedeceased for purchasing the land.

5. On the date of the incident i.e., on 13.O1.2074 atabout O1:OO p.m., while the deceased was in his KiranaShop, accused sprinkled chilly powder into the eyes of thedeceased, tied him to a cement pole in front of his shopwith nylon rope and hacked him on the legs with an axe.PWs.2, 3, 4 and 7 are ttre eye witnesses to the incident. Atabout O1:OO p.m., PWs.1 and 5 (sons of the deceased)reached the scene and on their enquiry, the deceasedinformed about the incident. PW.1 then called for anambulance and shifted the deceased to Bhainsa Hospital.

6. On receiving requisition from the Police of Tanoor, atabout 02.30 p.m., PW. 17 Civil Assistant Surgeon, AreaHospital, Bhainsa, examined the deceased and found onegrievous injury and one simple injury. Ex.P.L2 is the injury certificate issued by him. PW.IZ referred the deceased toNizamabad Hospital for better treatment and whileundergoing treatment, he died at 07.0O p.m.

7. Meanwhile, at about 04:OO p.m., pW. 1 lodgedacomplaint and basing on the complaint, pW. lg, the thenS.I. of Police, at Tanoor,registered a case in CrimeNo. I /20 I3 under sectionsI47, 148, 447, 342 and 3O7read with 149 IpC and issued FIR, which is marked asEx.P. 13. PW. 18 rushed to the scene of offence andrecorded the statement of pWs.2 to 4. pW. conductedlg scene of offence panchanamma in the presence of pW. 12,which is marked as Ex.p.14. Upon the death of thedeceased, PW. 18altered the section of law and issuedalteration memo,which is marked as Ex.p. 15. Further,investigation wastaken over by pW.2O, the then C.I. ofPolice, who conducted inquest over the dead body atGovernment Hospital, Bhainsa, in the presence of pWs.13and 14. Ex.P.9 is the inquest report.

8. On 14.01.2013, Dr. J.D.Karunakar (not examined,his signature identified by pW.21) conducted autopsy overthe dead body of the deceased and opined that cause of I

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death was due to external injury No. 1 Ex.P. 19 is the postmortem report.

9. On 19.01.2O 13, PW.2O arrested the accused.Fursuant to their confessions, at the instance of accusedNos. 1 and 3, axes (MOs.2 and 3) were recovered in thepresence of PWs.15 and 16. Ex.P. 11 is the Confession andSeizure Panchanama. PW.2O then forwarded all thematerial objects for RFSL. Ex.P. 17 is the FSL Report.

10. After receiving all the relevant documents and oncompletion of investigation, PW. 19 Iiled charge sheet. Insupport of their case, the prosecution examined 21witnesses and marked 19 exhibits. The defence markedEx.D. 1. PWs.3, 13 and 15 did not support the prosecutioncase and were declared hostile.

11. karned Sessions Judge, mainly relying on theevidence of witnesses PWs.2, 3, 4 and 7, who are eyewitnesses to the incident, convicted the accused underSection 302 read with Section 149 of IPC.

12. Learned counsel appearing for the appellants/accused would submit that there are discrepancies in

between the statements of pWs. L, 3 and 7. pWl statedthat the accused came to the shop of the deceased, pickedup quarrel, sprinkled chilly power into the eyes of thethat the accused came to the shop of the deceased, pickedup quarrel, sprinkled chilly power into the eyes of thedeceased, pushed him out and tied him to a pole. AccusedNos.4 and 5 caught hold of the deceased from behind thepole and accused Nos.1, 2 and 3 hacked the deceased withan axe. PW.S stated that accused No.S came to the shop ofan axe. PW.S stated that accused No.S came to the shop ofdeceased to purchase chocolate and sprinkled chilly power.Accused Nos.2, 4 and 5 caught hold of deceased and tiedhim to a cement pole. Accused Nos.l and 3 hacked thedeceased on his thighs with an axe. pW.7 stated thataccused No.S purchased chocolate and then sprinkledchilly powder. Accused Nos.l to 4 entered the shop andsprinkled chilly power.Accused Nos.2, 4 and 5 caught hold of deceased and tiedhim to a cement pole. Accused Nos.l and 3 hacked thedeceased on his thighs with an axe. pW.7 stated thataccused No.S purchased chocolate and then sprinkledchilly powder. Accused Nos.l to 4 entered the shop andtied the deceased to the pole. Accused Nos.2, 4 and 5caught hold of deceased and accused. Nos. 1 and 3 hackedcaught hold of deceased and accused. Nos. 1 and 3 hackedthe deceased on his thighs. In view of the discrepaltstatements made by pWs. l, 5 arrd Z regarding the overtactsattributed to the accused, their version cannot be believed.statements made by pWs. l, 5 arrd Z regarding the overtactsattributed to the accused, their version cannot be believed.

13. l,earned counsel further argued that pW.l7 Doctor,who initially examined the deceased at O2:30 p.m., foundtwo injuries. The deceased was shifted to the hospital at Nizamabad for better treatment and while undergoingtreatment, he died. FIR was registered at O4:00 p.m. If attreatment, he died. FIR was registered at O4:00 p.m. If atall, PW17 examined the deceased at O2:30 p.m., theearliest version given to the Police and Doctor at the time oftreatment, was suppressed.earliest version given to the Police and Doctor at the time oftreatment, was suppressed.

14. The appellants, who are members of one family, werearrayed as accused after due deliberations. Since theprosecution failed to provide the information received atO2:30 p.m., rvhen the deceased was examined, prosecutioncase has to be disbelieved for suppression of earliestverslon.

1 5. Learned counsel relied on the judgment of theHonble Supreme Court in No.nkaunoo Vs. State of LlttarPradeshl, wherein it was held as follows:Honble Supreme Court in No.nkaunoo Vs. State of LlttarPradeshl, wherein it was held as follows:

"13. Keeping in view the above principles, when weexamine the facts of the present case, the deceasedsustained gunshot wound of entry lYz" x 7yz,' onthe back and inner part of left thigh, six gunshotwounds of exit each [,A" ]x %" in size in front aldmiddle left thigh. Due to the occurrence in themorning at the barber shop of the deceased, theappellant emerged from the northern side of thegrove carrlring pistol in his hand and lired at thedeceased. The weapon used and the manner inwhich attack was made and the injury was inflicted

due to premeditation clearly establish that theappellant intended to cause the injury. Once it isappellant intended to cause the injury. Once it isestablished that the accused intentionally inflictedthe injury, then the offence would be murder, if itthe injury, then the offence would be murder, if itis sufficient in the ordinaqr course of nature tocause death. We find substance in the contentioncause death. We find substance in the contentionof the learned counsel for the appellant that theinjury was on the inner part of left thigh, which is anon-vital organ. Having regard to the facts andinjury was on the inner part of left thigh, which is anon-vital organ. Having regard to the facts andcircumstances of the case that the gunshot injurywas caused in the inner part of left thigh, thesufliciency of injury to cause death must be provedand cannot be inferred from the fact that death hastaken place. But the prosecution has not elicitedwas caused in the inner part of left thigh, thesufliciency of injury to cause death must be provedand cannot be inferred from the fact that death hastaken place. But the prosecution has not elicitedfrom the doctors that the gunshot injury on theinner part of left thigh caused rupture of anyimportant blood vessel and that it was sufficient inthe ordina5z course of nature to cause death.Keeping in view the situs and nature of injury andin the absence of evidence elicited from the doctorthat the said injury was suffrcient in the ordinarJrinner part of left thigh caused rupture of anyimportant blood vessel and that it was sufficient inthe ordina5z course of nature to cause death.Keeping in view the situs and nature of injury andin the absence of evidence elicited from the doctorthat the said injury was suffrcient in the ordinarJrcourse of nature to cause death, we are of the viewthat it is a fit case where the conviction of thethat it is a fit case where the conviction of theappellant under Section 3O2 IpC should be underSection 3O4 Part I IPC."Section 3O4 Part I IPC."

16. Learned counsel would submit that injuries were noton any vital part ofthe body, but on thighs ofthe deceased.In fact PW. 17, who examined the deceased at the firstinstance, found that only injury No. I was fatal.

17. Learned counsel further relied on the judgment ofHon'ble Supreme Court in Najabhai Desurbhai Wagh Vs- Valerabhai Dega nbhai Vagh and Others2, wherein it was held as follows:

"15. Having held that the accused formed into anunlawful assembly to commit an offence, whatremains to be decided is whether they can beattributed with the knowledge about murder. Oneof the members of the unlawful assemblyLakshmanbhai Bhikabhai Vagh (A-10) wasconvicted and sentenced under Section 3O2 fotcommitting the murder of Unadbhai Desurbhai.attributed with the knowledge about murder. Oneof the members of the unlawful assemblyLakshmanbhai Bhikabhai Vagh (A-10) wasconvicted and sentenced under Section 3O2 fotcommitting the murder of Unadbhai Desurbhai.The question is whether there was a prior concertby all the members of the unlawful assembly tocommit an offence of murder. The background inby all the members of the unlawful assembly tocommit an offence of murder. The background inwhich the attack was made by the accused doesnot show that there was a common object of anot show that there was a common object of amurder amongst the accused. Accused 1 wasinfuriated on being questioned by the appellantinfuriated on being questioned by the appellantregarding the damage to the electric pole near hishouse. Accused 1 along with the other accusedintended to show their superiority and teach alesson to the appellant. There is nothing on recordto suggest any previous enmity between theparties. Common object to commit a murdercannot be inferred only on the basis that theweapons carried by the accused were dangerous.The above facts would indicate that no knowledgeabout the likelihood of an offence of murder beingcommitted can be attributed to the members of theunlawful assembly, barring LakshmanbhaiBhikabhai Vagh (A-10) who has been convictedunder Section 302 IPC.lesson to the appellant. There is nothing on recordto suggest any previous enmity between theparties. Common object to commit a murdercannot be inferred only on the basis that theweapons carried by the accused were dangerous.The above facts would indicate that no knowledgeabout the likelihood of an offence of murder beingcommitted can be attributed to the members of theunlawful assembly, barring LakshmanbhaiBhikabhai Vagh (A-10) who has been convictedunder Section 302 IPC.

17. It is no more res integra that a finding of thecommission of the offence under Section 326 readwith Section 149 can be recorded against membersof an unlawful assembly even if it is establishedthat the offence under Section 3O2 was committedby one member of such assembly. (See ShambhuNath Singhv. State of Bihar lSlnmblru Nathcommission of the offence under Section 326 readwith Section 149 can be recorded against membersof an unlawful assembly even if it is establishedthat the offence under Section 3O2 was committedby one member of such assembly. (See ShambhuNath Singhv. State of Bihar lSlnmblru Nath Singhv. State of Bthar, AIR 1960 SC 725 : 1960 CriL,J 1744, paras 6 and 7l ."

18. On the other hand, learned Public Prosecutor wouldsubmit that minor discrepancies in cases such as thesewould occur. The consistent version given by eye witnesseswas that accused sprinkled chilly power, attacked thedeceased with axe after tying him to a pole. The intent tocommit murder is apparent from the facts of the presentcase.

19. Though the learned counsel had drawn attention ofthis Court to the discrepancies regarding the specific overtacts attributed by PWs. 1, 5 and 7, the eye witnesses have:stated about the deceased being held by accused and thenhacked on his thighs. The discrepancy in the evidence ofeye witnesses would not go to the root of the case, sincethe overt acts are attributed to the accused and theconviction is also recorded with the aid of Section 149 ofIPC-

20. The common object of the accused can be inferredfrom the fact that all the accused have come together,dragged the deceased to a distance, tied him to a pole, thereafter inflicted injuries. The facts would differ from onecase to another. The injuries that were inflicted were on thethighs of the deceased. Though the deceased was taken tothe hospital and treated by PW.i7, however, there is nohistory as narrated by PW. 17. PW.17 stated that since thethighs of the deceased. Though the deceased was taken tothe hospital and treated by PW.i7, however, there is nohistory as narrated by PW. 17. PW.17 stated that since thedeceased was bleeding and was in serious condition, hewas then shifted to Nizamabad Hospital for bettertreatment. PW.2l-Doctor identified the Post Mortem reportwas then shifted to Nizamabad Hospital for bettertreatment. PW.2l-Doctor identified the Post Mortem reportgiven by one Dr. J.D.Karunakar, who conducted postMortem. It is not the case that Dr. J.D.Karunakar was notavailable. PW.21 stated that in accordance with theavailable. PW.21 stated that in accordance with thedirections of Superintendent, he came to the Court anddeposed. Due to non-examination of the Doctor (Dr.J. D. Karunakar) who had conducted autopsy, prejudicewould be caused, for the reason of the accused not havingopportunity to elicit information regarding the fatal injury.21. However, the fact remains that all the accused hadcome together and injured the deceased on his thighsresulting in bleeding and consequent death. The injuriesopportunity to elicit information regarding the fatal injury.21. However, the fact remains that all the accused hadcome together and injured the deceased on his thighsresulting in bleeding and consequent death. The injurieswere not caused on any vital part of the body. In the saidcircumstances, the conviction under Section 302 of IPC is I

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set aside. However, accused Nos.l, 2,3 and,S are convictedunder Section 326 read with Section 149 of IpC andaccused Nos.1, 2 and 3 are sentenced to sufferimprisonment for seven years. So far as accused No.5 isconcerned, keeping in ,riew that she is a woman and hasthree minor children, this Court deems it appropriate tosentence accused No.S to the period already undergone byher.

22. Accordingly, Criminal Appea1 is partly allowed.

K. SRINIVASA RAOSRINIVASA RAORAOJOINTREGISTRAREGISTRAR IseCrr ON OFFICER

Sd/- K. SRINIVASA RAOSRINIVASA RAORAOJOINTREGISTRAREGISTRAR

//TRUE COPY//

To,

1. The Principal Sessions Judge at Adilabad (with records, if any)The Principal Sessions Judge at Adilabad (with records, if any)

2. The Judicial First Class Magistrate, Bhainsa, AdilabadThe Judicial First Class Magistrate, Bhainsa, Adilabad

3. The Superintendent, Central prison, Warangal

4. The Superintendent, Central prison, Chanchalguda, HyderabadChanchalguda, Hyderabad

5. The Circle lnspector of police, Mudhole, Adilabad

6. Two ccs to the [pubric ]prosecutor, High court for the state of rerangana,Hyderabad [OUT]Hyderabad [OUT]

7. One CC to Sri C Vasundhara Reddy, Advocate IOPUC]IOPUC]

8. Two CD Copies

VA/ghYY

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HIGH COURT

DATED:31 11212024

,'1[r1E- ][S ][i4 ]/a72 / ,rAl'i 2025.L**PAT CORDERCRLA.No.SO3 of 2017

PARTLY ALLOWING THE CRLA

,dAf*"