Pradhan Vishal vs State Of Telangana

Since both these Criminal Appeals arise out of the judgment dated 14.11.2019 passed in S.C.No.32 of 2018 by the learned IV Additional Metropolitan Sessions Judge, Hyderabad, they were heard together and are being disposed of by way of this common judgment.

Criminal Appeal No.466 of 2020 is filed by Accused No.1 and Criminal Appeal No.125 of 2020 is filed by Accused No.2 challenging the judgment of conviction and order of sentence dated 14.11.2019 passed in S.C.No.32 of 2018.

The brief facts of the case are that on the intervening night of 06/07.06.2017, PW.1 and PW.2, who were Police Constables attached to Abids Police Station, while performing Blue Colts patrolling duty, noticed at about 2:45 a.m. two persons assaulting one Sami on the footpath in front of Srikanth Jewellers, Abids. On noticing the police, the assailants fled towards the General Post Office Cross Roads. PW.1 and PW.2 immediately approached the injured, who had sustained bleeding injuries below his right eye. On enquiry, the injured disclosed his name as Sami and stated that the persons who assaulted him were Vishal and Naresh. Thereafter, the injured was shifted to Osmania General Hospital, where he was admitted for treatment as a medico-legal case. Based on the complaint lodged by PW.1, Crime No.125 of 2017 was registered by Abids Police Station initially for the offence punishable under Section 324 of the Indian Penal Code.

During the course of investigation, the Investigating Officer visited the scene of offence, prepared the scene observation panchanama and rough sketch, examined the witnesses and collected other material evidence. On the same day, the injured succumbed to the injuries while undergoing treatment at Osmania General Hospital. Consequently, the provision was altered from Section 324 of IPC to Section 304 Part II of IPC and, thereafter, to Section 302 of IPC. During investigation, the Investigating Officer secured CCTV footage from the cameras installed at Srikanth Jewellers and the adjacent Ocean Luggage Port shop. The CCTV footage allegedly showed the accused dragging the deceased onto the footpath, repeatedly assaulting him, beating him with slippers, kicking him on the head and face and trampling upon his lower body even after he had fallen unconscious. The CCTV footage was copied into DVDs along with certificates issued under Section 65-B of the Indian Evidence Act and seized under panchanama.

On 08.06.2017, the accused were apprehended by the police. During interrogation, they allegedly confessed to the commission of the offence. Pursuant to the disclosure statement made by appellant/accused No.1, a pair of rubber slippers alleged to have been used in the commission of the offence was recovered from a public toilet near the General Post Office, Abids, under the cover of a seizure panchanama. The Investigating Officer also conducted a Test Identification Parade through the jurisdictional Magistrate, wherein PW.3 identified both the accused. Since the deceased was initially unidentified, the Investigating Officer preserved the dead body, circulated his photograph and descriptive particulars to various police stations, and subsequently, on 13.06.2017, the father of the deceased identified the body as that of Salman Ali Khan @ Sami. Upon completion of the investigation, a charge sheet was filed against accused Nos.1 and 2 for the offence punishable under Section 302 read with Section 34 of IPC.

The learned II Additional Chief Metropolitan Magistrate, Hyderabad, took cognizance of the offence in P.R.C. No.11 of 2017 and, after complying with the provisions of Section 207 Cr.P.C., committed the case to the Court of Sessions. The learned Metropolitan Sessions Judge, Hyderabad, took the case on file as S.C.No.32 of 2018 and made it over to the learned IV Additional Metropolitan Sessions Judge, Hyderabad, for trial.

Upon the appearance of the accused before the trial Court, a charge was framed against accused Nos.1 and 2 for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. The accused pleaded not guilty and claimed to be tried.

In order to establish the guilt of the accused, the prosecution examined PWs.1 to 17, marked Exs.P1 to P18 and produced M.O.1. After the closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses. The accused denied all the incriminating circumstances and, though they reported defence evidence, they did not examine any witness.

Upon appreciation of the oral and documentary evidence available on record, the learned trial Judge, by judgment dated 14.11.2019 in S.C. No.32 of 2018, found accused Nos.1 and 2 guilty of the offence punishable under Section 302 read with Section 34 of IPC and convicted them under Section 235(2) Cr.P.C. They were sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/- each, in default, to suffer simple imprisonment for one month. Aggrieved thereby, accused No.1 preferred Criminal Appeal No.466 of 2020 and accused No.2 preferred Criminal Appeal No.125 of 2020 before this Court.

Heard Sri K. Pradeep Reddy, learned counsel appearing on behalf of the appellant/accused No.2 in Crl.A.No.125 of 2020, Sri N. Rishi Kumar, learned counsel appearing on behalf of the appellant/accused No.1 in Crl.A.No.466 of 2020 and Sri M. Ramachandra Reddy, learned Additional Public Prosecutor appearing on behalf of the respondent - State.

Learned counsel appearing for the appellants/Accused Nos.1 and 2 contended that the impugned judgment of conviction and sentence is contrary to law, the evidence on record and the probabilities of the case and that the learned trial Judge failed to properly appreciate the evidence of the prosecution witnesses, particularly the admissions elicited from PW.1 during cross-examination. Though PW.1 and PW.2 claimed that they were on Blue Colts patrolling duty at the relevant time, no official record was produced to establish their deployment, thereby rendering their presence at the scene doubtful. He submitted that there are material discrepancies regarding the time of the incident and the receipt of information by the police, which create serious doubts about the prosecution case. He further submitted that PW.3, who was projected as an independent eye-witness, was admittedly working as a security guard at the relevant time and his evidence does not establish that he had actually witnessed the occurrence. Moreover, PW.3 had no prior acquaintance with either the appellants or the deceased, and therefore his identification of the appellants cannot be safely relied upon. He further contended that the Test Identification Parade loses its evidentiary value in the absence of credible evidence establishing that PW.3 had witnessed the incident.

Learned counsel for the appellants further contended that the prosecution primarily relied upon the CCTV footage (Exs.P2 and P4 DVDs), but the said electronic evidence does not clearly establish the identity of the assailants. The DVDs were produced by the police and not by the owners of the respective establishments where the CCTV cameras were installed, thereby creating serious doubts regarding their authenticity and evidentiary value. He further submitted that CCTV footage by itself is only a piece of circumstantial evidence and cannot form the sole basis for conviction, particularly when there is no reliable corroborative evidence and that except the official witnesses, there is no independent witness who has actually seen the appellants committing the offence. The prosecution also failed to establish the motive for the alleged offence or any prior enmity between the appellants and the deceased. The voluntary statements allegedly made by the appellants do not disclose any intention or premeditation to cause the death of the deceased and, therefore, the essential ingredients of the offence punishable under Section 302 IPC are not made out. He along contended that the prosecution itself initially registered the case under Section 324 IPC, thereafter altered it to Section 304 Part II IPC and subsequently to Section 302 IPC, which itself creates doubt regarding the nature of the offence. Thus, the learned trial Judge ought to have extended the benefit of doubt to the appellants instead of convicting them under Section 302 read with Section 34 IPC. Therefore, they prayed the Court to set aside the judgment of the trial Court by allowing these Criminal Appeals.

Per contra, learned Additional Public Prosecutor opposed the submissions made by the learned counsel for the appellants stating that there is no illegality in the judgment and contended that the prosecution has proved the guilt of the appellants beyond all reasonable doubt through cogent oral, documentary and electronic evidence. He submitted that PW.1 and PW.2, who were on Blue Colts patrolling duty, immediately reached the scene of offence, noticed the appellants assaulting the deceased and promptly shifted the injured to the hospital besides lodging the complaint without any delay. Their testimony inspires confidence and there is no reason to discard their evidence merely because they are official witnesses. He further submitted that the evidence of PW.3, an independent witness, clearly establishes that the appellants assaulted the deceased indiscriminately by beating him with slippers, dragging him on the road and repeatedly kicking and trampling upon his body, including his genital region, thereby causing fatal injuries. The said ocular evidence is fully corroborated by the medical evidence, the post-mortem report and the CCTV footage collected during investigation.

Learned Additional Public Prosecutor contended that the CCTV footage was duly seized in accordance with law and was accompanied by the requisite certificates under Section 65-B of the Indian Evidence Act. The footage clearly depicts the appellants assaulting the deceased and therefore constitutes reliable electronic evidence corroborating the prosecution case. He contended that PW.3 correctly identified the appellants during the Test Identification Parade and the recovery of the slippers used in the commission of the offence at the instance of accused No.1 lends further assurance to the prosecution case. He stated that the trial Court, upon proper appreciation of the entire evidence on record, rightly convicted the appellants for the offence punishable under Section 302 read with Section 34 IPC. Therefore, he prayed the Court to dismiss these Criminal Appeals.

The following points arise for consideration in these Criminal Appeals:

To prove the allegations against the appellants/accused, the prosecution examined P.Ws.1 to 17, marked Exs.P1 to P18 and produced M.O.1. P.Ws.1 and 2, who were Police Constables on Blue Colts patrolling duty, deposed about noticing the appellants assaulting the deceased, shifting him to the hospital and registration of the crime. P.W.3, an independent eye-witness, spoke about witnessing the appellants indiscriminately assaulting the deceased. P.W.6 proved the collection of the CCTV footage and the certificate issued under Section 65-B of the Indian Evidence Act. P.Ws.7 and 8 identified the deceased, P.W.10 acted as the inquest panch witness, P.W.11 proved the CCTV footage, P.W.12 conducted the Test Identification Parade, P.W.13, the post-mortem doctor, opined that the deceased died due to head injury associated with multiple other injuries, P.W.14 spoke about the recovery of M.O.1 at the instance of Accused No.1, and P.W.17, the Investigating Officer, deposed regarding the investigation and filing of the charge sheet.

The evidence of P.W.13 clearly establishes that the death of the deceased was homicidal in nature. His medical opinion is fully corroborated by the testimony of P.W.3, who witnessed the occurrence, and the CCTV footage marked as Ex.P2, which depicts the manner in which the appellants assaulted the deceased. Thus, the ocular, medical and electronic evidence, when read together, clearly establish that the deceased sustained homicidal injuries in the said incident.

In the light of the submissions advanced by the learned counsel appearing for the appellants and the learned Additional Public Prosecutor and upon perusal of the material available on record, the principal contention of the learned counsel for the appellants is that the conviction is mainly based on Ex.P2, the CCTV footage, and that the same, being only a piece of circumstantial evidence, is not sufficient to establish the guilt of the appellants. It is further contended that the CCTV footage was not proved in accordance with law and, therefore, could not have been relied upon by the trial Court.

A perusal of the record would disclose that the CCTV footage was collected by the Investigating Officer from the CCTV cameras installed in front of Srikanth Jewellers, where the incident had actually taken place. The footage was seized during the course of investigation and was produced before the trial Court along with the certificate contemplated under Section 65-B of the Indian Evidence Act. The prosecution also examined the concerned witnesses to establish the collection and seizure of the electronic record. Therefore, the electronic evidence satisfies the statutory requirements for its admissibility. The CCTV footage is not the sole basis for the conviction but only corroborates the ocular and medical evidence available on record. Hence, the trial Court has rightly placed reliance upon Ex.P2 and there is no illegality or irregularity in considering the said electronic evidence.

The next contention of the learned counsel for the appellants is that PWs.1 and 2 are official witnesses and that there is no independent evidence connecting the appellants with the commission of the offence. Merely because PWs.1 and 2 are police officials, their evidence cannot be discarded solely on that ground. The evidence on record discloses that both PWs.1 and 2 were on Blue Colts patrolling duty during the intervening night of the incident. While discharging their official duties, they noticed the appellants assaulting the deceased. On seeing the police personnel, both the appellants fled from the scene of offence. Immediately thereafter, PW.1 and PW.2 approached the injured, who disclosed his name as Sami and also revealed that the persons who assaulted him were Vishal and Naresh. The injured was immediately shifted to Osmania General Hospital for treatment and, thereafter, PW.1 lodged the complaint without any delay.

The evidence of PW.1 is natural, spontaneous and inspires confidence. Nothing substantial has been elicited during his cross-examination to discredit his testimony or to create any reasonable doubt regarding his presence at the scene of offence. Similarly, the evidence of PW.2 fully corroborates the testimony of PW.1 with regard to the occurrence. It is a settled principle of law that the evidence of a police officer cannot be rejected merely because he belongs to the police department, if his evidence is otherwise trustworthy and inspires confidence. Therefore, this Court finds no reason to discard the testimony of PWs.1 and 2.

The learned counsel for the appellants contended that PW.3 could not have witnessed the occurrence since he was discharging his duties as a security guard and, therefore, his evidence cannot be relied upon. A careful reading of the evidence of PW.3 would reveal that he was present near the place of occurrence while performing his duties as a security guard. He categorically deposed that he witnessed both the appellants indiscriminately beating the deceased, dragging him on the road, repeatedly kicking and assaulting him, and that shortly thereafter the police reached the spot and shifted the injured to the hospital. His testimony is consistent with the version spoken to by PWs.1 and 2 and also finds complete corroboration from the CCTV footage and the medical evidence.

Nothing worthwhile has been elicited during the cross-examination of PW.3 to discredit his testimony or to show that he was falsely implicating the appellants. The mere fact that he was on duty as a security guard does not lead to the conclusion that he could not have witnessed the incident, particularly when the occurrence took place in close proximity to his place of duty. Therefore, the evidence of PW.3 remains trustworthy and reliable and clearly establishes the participation of the appellants in the occurrence.

The last contention urged by the learned counsel for the appellants is that there was no previous enmity or motive for the appellants to commit the murder of the deceased. It is also submitted that both the appellants and the deceased were under the influence of alcohol at the relevant point of time and that the incident occurred suddenly during a quarrel. According to the learned counsel, in the absence of any intention or premeditation to cause the death of the deceased, the conviction under Section 302 IPC cannot be sustained.

This contention deserves careful consideration. From the evidence available on record, it is not in dispute that the deceased and the appellants were acquainted on the date of occurrence and that all of them were under the influence of alcohol. The evidence further discloses that a quarrel ensued between them over demand of money, during which the appellants assaulted the deceased. There is no evidence to establish that the appellants had any prior enmity with the deceased or that they had come to the scene with a pre-conceived plan or intention to commit his murder.

Though the prosecution has successfully established that the deceased sustained multiple injuries at the hands of the appellants and that the death was homicidal in nature, the surrounding circumstances do not indicate that the appellants had the intention of causing the death of the deceased or of causing such bodily injury as was sufficient in the ordinary course of nature to cause death. The incident appears to have occurred suddenly in the course of a quarrel without any prior premeditation.

It is well settled that every homicidal death does not necessarily amount to murder punishable under Section 302 of IPC. The distinction between "murder" and "culpable homicide not amounting to murder" depends upon the existence of intention or the requisite knowledge as contemplated under the Indian Penal Code.

In the present case, the prosecution has undoubtedly proved that the death of the deceased was homicidal and that the appellants were responsible for causing the injuries which ultimately resulted in his death. However, having regard to the manner in which the incident occurred, the absence of prior motive or premeditation, the fact that the occurrence arose out of a sudden quarrel while the parties were under the influence of alcohol, and the absence of evidence establishing the requisite intention to commit murder, this Court is of the considered opinion that the offence would appropriately fall within the ambit of culpable homicide not amounting to murder punishable under Section 304 Part II of IPC, as the appellants can reasonably be attributed with the knowledge that their acts were likely to cause death, though without the intention of causing death.

In the result, both the Criminal Appeals are allowed in part. The judgment of conviction and sentence dated 14.11.2019 passed by the learned IV Additional Metropolitan Sessions Judge, Hyderabad, in S.C. No.32 of 2018, convicting the appellants/Accused Nos.1 and 2 for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentencing them to undergo imprisonment for life with fine, is modified.

The conviction of the appellants/accused Nos.1 and 2 for the offence punishable under Section 302 read with Section 34 IPC is set aside. Instead, they are convicted for the offence punishable under Section 304 Part II read with Section 34 IPC.

Since the appellants have already undergone the substantive period of imprisonment awarded for the said offence, the sentence already undergone by them shall be treated as the sentence imposed for the offence under Section 304 Part II read with Section 34 of IPC. The sentence of fine imposed by the trial Court shall remain unaltered and, in default of payment of fine, the appellants shall undergo the default sentence as ordered by the trial Court.

Consequently, if the appellants are not required in any other case, they shall be released forthwith.

Pending miscellaneous applications, if any, shall stand closed.