Telangana High Court
Madasu Shiva Kumar, Mahabubnagar And 3 … vs The State Of Telangana, Rep Pp on 7 April, 2026
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SRI JUSTICE VAKITI RAMAKRISHNA REDDY
CRIMINAL APPEAL Nos.1289, 1079 AND 1089 OF 2017
DATE: 07-04-2026.
Between in Crl.A. No.1289 of 2017:
Mr. Madasu Shiva Kumar & others .. Appellants - Accused
Vs.
The State of Telangana, rep.by its
Public Prosecutor, High Court at Hyd. .. Respondent - Complainant
The Court made the following:
COMMON JUDGMENT:
(Per Hon’ble Sri Justice K. Lakshman)
Heard Mrs. G. Jaya Reddy, learned counsel for appellants –
accused Nos.1, 2 and 5 to 8 in Crl.A. Nos.1289 & 1079 of 2017, Mr.
P. Prabhakar Reddy, learned counsel for appellants – accused Nos.3
and 4 in Crl.A. No.1089 of 2017 and Mr. Syed Yasar Mamoon,
learned Additional Public Prosecutor appearing on behalf of the
respondent – State.
2. Crl.A. No.1289 of 2017 is filed by the appellants – accused
Nos.1, 2, 5 & 6, while Crl.A. No.1079 of 2017 is filed by accused
Nos.7 and 8 and Crl.A. No.1089 of 2017 is filed by accused Nos.3 and
2
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
4, challenging the judgment dated 24.08.2017 in S.C. No.394 of 2016
passed by learned Principal Sessions Judge, Mahabubnagar.
3. Vide the aforesaid judgment, learned trial Court convicted
the appellants – accused for the offences under Sections – 148 and 302
read with 149 of IPC, and accordingly sentenced them to undergo life
imprisonment for the offence under Section – 302 read with 149 of
IPC and further sentenced them to undergo simple imprisonment for a
period of three (03) years for the offence under Section – 148 of IPC.
4. The case of the prosecution is as under:
i) Accused Nos.1, 2, 5 and 6 are eking out their livelihood by
rearing pigs. With regard to the said activity, some quarrels took
place between PW.6 – brother of the deceased and accused No.1. The
deceased – Mahesh was elected as Ward Member of Gram Panchayat.
Since then, the deceased started obstructing the pigs business of the
aforesaid accused at Balanagar Sandy.
ii) About two (02) years back from the date of incident, the
deceased helped accused No.5 in selling his house and took an amount
of Rs.50,000/- from the parents of accused No.1 forcibly to construct a
temple. The deceased also imposed penalty against accused No.1 on
the ground that he committed theft of pigs belongs to the deceased and
3
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
Crime No.116 of 2014 was also registered for the offence under
Section – 324 of IPC to that effect. Accused No.1 beat the deceased
due to the said dispute. In this regard, the deceased took an amount of
Rs.16,000/- from accused No.1 and compromised the case.
iii) About 5-6 months back, the deceased beat accused No.1
alleging that he had stolen the pigs of Madasu Mangamma and sold
them at Mahabubnagar. In this regard, a panchayat was held in the
presence of elders, where a fine was imposed on accused No.1.
iv) On 28.01.2016, Akkamma – sister-in-law of the deceased,
and others had beat accused No.1 and damaged his auto-rickshaw on
the ground that he did not pay fine amount. In this regard, a case was
also registered against Akkamma and 7 others in Crime No.16 of 2016
for the offences under Sections – 324 and 427 read with 34 of IPC, due
to which, the deceased bore grudge against accused No.1.
v) On 13.02.2015, the deceased family members also beat
accused No.5 and caused head injury. A case in Crime No.33 of 2016
was also registered against the relatives of deceased for the offence
under Section – 324 read with 34 of IPC. In the said case, the sister-
ion-law of the deceased – Ankamma was also sustained severe injury
to her right hand. Therefore, on her report, a case in Crime No.34 of
4
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
2016 was also registered against the family of accused No.1 for the
offences under Sections – 324 and 323 read with 34 of IPC.
vi) Accordingly, accused No.1 bore grudge against the
deceased and decided to kill him and also decided to take help of his
relatives. On 21.02.2016 at 9.00 P.M., accused Nos.1 to 8 were
gathered in the house of accused No.1, discussed about the acts of
deceased and decided to kill him on the next day. On 22.02.2016,
accused No.2 brought an auto-rickshaw bearing No.TS 06UA 7530
and put the same near their house. As per their pre-plan, accused No.1
sat in the said auto with knife, while accused No.2 drove the same and
accused Nos.3, 4 and 6 to 8 were also sat in the said auto-rickshaw
and observed the movements of deceased. Meanwhile, the deceased
came from his house to Nandaram Road side, Balanagar Village
outskirts on walk and smoking the cigarette.
vii) At 9.00 P.M., they reached near the deceased in the said
auto-rickshaw and accused No.1 forcibly stabbed the deceased over
chest, face and throat 5-6 times with the knife, as a result, the
deceased was about to fell down, accused No.4 caught his both hands
towards back, accused No.3 stabbed the deceased over chest, throat
and face 5-6 times with the same knife. As a result, the deceased fell
5
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
down meanwhile accused No.2 stabbed the deceased with the same
knife several times. Accused No.5 came to the scene on TVS XL
Super bearing registration No.AP 22S 3057 and covered as security.
Accused Nos.6 to 8 were present at the scene of offence and
encouraged accused Nos.1 to 5 to kill the deceased by making cries.
As a result, the deceased sustained severe bleeding injuries to his
chest, face, throat and other parts of the body and succumbed to the
death on the spot. Thus, accused Nos.1 to 4 were directly participated
in the offence, while accused Nos.5 to 8 were criminally conspirated
the crime, and thereby they committed the offences punishable under
Sections – 147, 148, 302 and 120B read with 149 of IPC.
viii) On receipt of Ex.P1 – Telugu written report from PW.1 –
wife of the deceased, PW.12 – the then Sub-Inspector of Police,
Balanagar Police Station, registered a case in Crime No.46 of 2016
under Sections – 147, 148 and 302 read with 149 of IPC and issued
Ex.P10 – express FIR and took up investigation. During investigation,
he examined PW.1 and recorded her statement under Section – 161 of
Cr.P.C. On receipt of Ex.P10 – FIR, PW.13 – Inspector of Police,
conducted further investigation. After completion of investigation, he
laid charge sheet against the accused for the aforesaid offences. Since
6
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
one of the offences is exclusively triable by Court of Sessions, learned
Magistrate committed the said case to the District Court, who in turn
numbered it as S.C. No.394 of 2016 and made over to the trial Court
for proceeding with trial.
5. The trial Court framed charges for the aforesaid offences
against the accused and then proceeded with trial.
6. During trial, prosecution examined PWs.1 to 13 and marked
Exs.P1 to P12 and MOs.1 to 6 were exhibited to prove its case. On
behalf of the accused, DW.1 was examined and Exs.D1 to D3 were
marked.
7. After completion of evidence on behalf of the prosecution,
all the accused were examined under Section – 313 of Cr.P.C.
Thereafter, upon hearing both sides, the trial Court recorded
conviction against the appellants herein for the aforesaid offences and
accordingly imposed life imprisonment and other sentences of
imprisonment in the manner stated above. Challenging the said
conviction and sentences of life imprisonment, the appellants
preferred the present appeals.
8. Both the learned counsel appearing on behalf of the
appellants contended as follows:
7
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
i) There is no eye witness to the occurrence, and the entire
case rests on circumstantial evidence.
ii) There are discrepancies in the testimonies of PWs.1 to 3,
6, 8, 9 and 10 and they are interested witnesses.
Therefore, benefit of doubt should be given to the
accused.
iii) The family members of the appellants were roped into the
offence by making omnibus allegations against the
appellants.
iv) There is no specific evidence against the appellants in
respect of the aforesaid offences.
v) The medical evidence and forensic examination report
are contrary to the oral evidence adduced by the
prosecution.
vi) The accused were implicated falsely for no fault of them.
vii) Without considering the said aspects, the trial Court
convicted the accused for the said offences and imposed
life imprisonment, which is illegal and against the
evidence on record.
8
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
With the aforesaid submissions, they sought to set aside the impugned
judgment recording conviction and imposition of sentence against the
appellants herein.
9. On the other hand, learned Additional Public Prosecutor
would submit as under:
i. PW.2, PWs.3 to 5 and PW.9 are eye witnesses to the incident.
There is also circumstantial evidence and they specifically
deposed with regard to the commission of offences by the
accused.
ii. There is motive on the part of the appellants to commit the
aforesaid offences and the same was proved by the testimonies
of prosecution witnesses.
iii. The circumstances relied upon by the prosecution forms a
complete chain.
iv. The contradictions and omissions in the prosecution witnesses
are minor in nature and the same would not tilt the case of the
prosecution.
v. The prosecution proved its case beyond reasonable doubt.
9
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batchvi. The trial Court having considered all the said aspects only
convicted the accused for the said offence and imposed life
imprisonment. There is no error in it.
With the aforesaid submissions, learned Additional Public Prosecutor
sought to dismiss the appeals.
10. In view above rival submissions, the point that falls for
consideration by this Court is:
Whether the conviction and sentences of imprisonment
recorded by the trial Court for the offences under Sections –
148 and 302 read with 149 of IPC against the appellants
herein – accused Nos.1 to 8 are sustainable, both on facts
and in law?
11. To prove the guilt of the appellants – accused, prosecution
has examined PW.1 – the complainant and the wife of the deceased;
PW.2 – eye-witness and son of the deceased; PWs.3 to 5 and 9 – eye
witnesses; PW.6 – circumstantial witness and brother of the deceased;
PW.7 – scribe of the report; PW.8 – panch witness for scene of offence
and inquest panchanama; PW.10 – panch witness for confession and
seizure panchanama of accused Nos.1, 2, 3, 5 and 6; PW.11 – the
doctor, who conducted autopsy over the dead body of the deceased;
PW.12 – Sub-Inspector of Police, who registered FIR and PW.13 is the
10
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
Investigating Officer, who conducted investigation and filed charge
sheet.
12. Before dealing with the discussion, it would be apt to
discuss with regard to deposition of the prosecution witnesses.
13. PW.1, who set the criminal law into motion by lodging
Ex.P1 – report with police, deposed that she is the wife of the deceased
and resident of Dommara Colony, Balanagar. Her husband was Ward
Member of Panchayat and Chairman of Vidya Committee and
President of Organization for Nomadic Tribes. Her husband used to
rear pigs for their livelihood. PW.6 is the elder brother of her
husband. Accused No.1 and PW.6 were having disputes with regard
to rearing of pigs. In that background, her husband suffered injuries at
the hands of accused No.1 and the case was ended in compromise. In
another incident, accused No.1 beat the wife of PW.6 and a case is
also pending to that effect.
i) She further deposed that on 22.02.2016 at about 8.30 P.M.,
her husband went outside to purchase Maaza Cool Drink for their
children. After bringing the said cool drink, her husband went to his
brother’s house, while talking over cell phone, then accused came
there in an auto-rickshaw, while some others came there on
11
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
motorcycle. Accused Nos.1 to 8 armed with knives and sickles and
attacked her husband and injured him with knives and sickles. She,
PW.2, PW.3 PW.4 and PW.9 witnessed the incident. As they were
shouting, the accused ran away. Then, they took the deceased to
Government Hospital, Shadnagar in 108 Ambulance. Thereafter, she
lodged Ex.P1 report with police.
ii) During cross-examination, she specifically admitted that the
scene of offence is about 100 yards from their house. She cannot say
the specific overt act, but first stabbing was on the chest of her
husband. Ex.P1 got drafted by PW.7.
14. PW.7, the scribe of Ex.P1 – report, deposed that he went to
the Government Hospital, Shadnagar to see the dead body of the
deceased at about 11.30 A.M. on 23.03.2016. PW.1 requested him to
draft Ex.P1 report about the death of her husband and accordingly he
drafted Ex.P1 report as per her instructions.
i) During cross-examination, PW.7 admitted that his house is
intervened by ten houses from the house of PW.1. He came to know
about the death of the deceased in the morning hours on 23.02.2016 at
about 9.00 A.M.
12
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
15. PW.2, the son of the deceased, deposed in his chief
examination that there were disputes between PW.6 and accused No.1.
His father supported PW.6. On 22.02.2016 at 9.00 P.M., his father
was going towards the house of PW.6, the accused came in an auto-
rickshaw and attacked him with knives and axes etc and killed him.
He witnessed the incident. The accused went towards Nandaram Road
after attacking his father.
i) Nothing useful was elicited from the cross-examination of
this witness.
16. PW.3, daughter of elder brother of the deceased, deposed
with regard to the disputes between PW.6 and accused No.1 with
regard to rearing of pigs and on the said aspect, the deceased
supported PW.6. On 22.02.2016 at 9.00 P.M., she was sitting under a
tree near her house. PW.9 and PW.4 were present along with her.
PW.2, PW.5 and Mr. Vamshi Krishna were also with her. At that
time, the deceased was walking on the road by talking over cell phone,
then the accused came in an auto-rickshaw and attacked him with
knives and axes. Immediately, they fled away towards Nandaram side
in the auto-rickshaw. The deceased died after he was shifted to
Hospital in 108 Ambulance.
13
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
i) During cross-examination, she admitted that the deceased,
PW.6 and her father are real brothers. The house of accused No.1 is
beyond their house and accused No.1 has to cross to their house to
reach his house. She denied the suggestion that she did not state
before the police about the presence of Vamshi Krishna, Venkatesh
along with her. Ex.D2 is the relevant portion of her 161 Cr.P.C.
statement.
17. PW.4, said to be an eye-witness, did not support the case of
prosecution and, therefore, she was declared hostile and cross-
examined by learned Public Prosecutor. Nothing useful was elicited
from her. However, during cross-examination by learned counsel for
the accused, she admitted that the deceased was having several
enemies as he was in the habit of threatening others with SC/ST cases
and extract money.
18. PW.5 said to be an eye-witness, did not support the case of
prosecution and, therefore, he was declared hostile and cross-
examined by learned Public Prosecutor. Nothing useful was elicited
from her.
19. PW.9, said to be an eye-witness to the occurrence deposed
that her house is near the house of PW.1. On 22.02.2016 at about 8.30
14
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
P.M., she and her neighbours including PW.1 sat in front of the house
of PW.1. At that time, the deceased walked towards his brother,
Ramulu and PW.6 while talking over phone. Within five minutes,
they heard shouts. She rushed towards the place from which she
heard shouts. There is a layout of vacant sites near the house of
Ramulu, where she saw accused Nos.1 and 2 stabbing the deceased
with knives. She cannot identify the other persons who were in the
auto-rickshaw.
i) During cross-examination, she admitted that she is the
daughter of elder brother of the deceased.
20. PW.6, younger brother of the deceased, deposed with
regard to having disputes with accused No.2 in respect of rearing of
pigs. He further deposed that one year at about 10.00 p.m., the
deceased purchased cool drink bottle for his family members. Then
the deceased came to his house and later he went to the house of his
elder brother, Ramulu, while talking over phone, all the accused came
in an auto-rickshaw and attacked the deceased, stabbed on the chest
and neck and then the accused ran away towards Nandaram.
i) During cross-examination, PW.6 admitted that accused No.3
was there and she shifted the deceased into the Ambulance. Accused
15
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
No.3 called the Ambulance and also informed to the police from the
cell phone of his son. Accused No.3 was not in the group of persons
who killed the deceased. He cannot say individual overt acts of
accused Nos.1, 2 and 4 to 8.
21. PW.8 is only a panch and deposed with regard to the
Inspector of Police conducting scene of offence panchanama vide
Ex.P4 – scene of offence panchanama in his presence and LW.10. He
further deposed with regard to conducting inquest over the dead body
of the deceased vide Ex.P5 and seizure of MOs.1 to 4.
i) During cross-examination, nothing useful was elicited from
him.
22. PW.10 is also a panch witness for confession and seizure
panchanama of accused Nos.1, 2, 3, 5 and 6, deposed that on
29.02.2016 at 6.30 hours, the police called him and LW.1 to act as
panchas and asked them to be at Jadcherla Flyover, where accused
Nos.1, 2, 5 and 6 were present. On the confession made by accused
No.1, knife kept under the passenger seat of auto-rickshaw was
recovered. On the confession of accused No.5, TVS Excel Moped was
recovered, while on the confession of accused No.2, auto-rickshaw
bearing No.TS 06UA 7530 was recovered, and they are MOs.1 to 3.
16
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
They observed blood stains on the back seat of the auto-rickshaw and
also observed blood stains on the seized knife. Ex.P6 to 8 are
admissible portions of confessions.
i) During cross-examination, PW.10 admitted that he did not
see the accused except in the Court.
23. PW.11, the doctor, deposed with regard to autopsy
conducted over the dead body of the deceased on 23.02.2016 between
12.30 P.M. and 2.00 P.M. According to him, the death was due to
stab injuries. The injuries noted by him in Ex.P9 – postmortem
examination report are caused due to sickle or knife.
i) During cross-examination, he admitted that he did not note
the nature of weapon which might have caused the injuries. He did
not see the inquest report.
24. PW.12, the then Sub-Inspector of Police, Balanagar Police
Station, deposed with regard to receiving Telugu written report from
PW.1 and thereafter registering a case in Crime No.48 of 2016 under
Sections – 147, 14 and 302 read with 149 of IPC vide Ex.P10 – FIR.
25. PW.13, the then Circle Inspector of Police, deposed that on
receipt of information from PW.12 about registration of FIR, he
17
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
secured presence of PW.8 and LW.10 and conducted Ex.P4 scene of
offence panchanama and drawn rough sketch. Thereafter, he visited
the Government Hospital, Shadnagar, where he conducted inquest
over the dead body of the deceased vide Ex.P5. He also examined
PWs.1, 2 and 4 and seized MOs.4 to 6. He also took steps for
conducting autopsy over the dead body of the deceased. He also
examined other witnesses and recorded their statements. He also
recorded the confessions made by the accused in the presence of
panch witnesses. He arrested the accused and produced before the
Magistrate. After receipt of post-mortem examination report, he laid
charge sheet against the accused.
26. In view of the aforesaid rival submissions and the evidence
available on record, as stated above, learned trial Court convicted the
accused for the offences under Section – 148 of IPC and Section – 302
read with 149 of IPC. The essential ingredients for commission of
offence under Section – 148 of IPC are that there should be a
formation of an unlawful assembly as defined under Section – 141 of
IPC, that means five or more persons must share a common object, to
commit an offence, like murder, assault etc.; accused must be a
member of that assembly; use of force or violence; and armed with a
18
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
deadly weapon. To invoke Section – 149 of IPC, it must be shown
that the offence was committed in prosecution of common object, or
the members knew it was likely to be committed. In this case,
whether prosecution proved its case beyond reasonable doubt or not
must be seen and whether learned trial Court was right in recording
conviction or not.
27. On perusal of evidence of prosecution witnesses, it is not in
dispute that the deceased is the husband of PW.1 – complainant. He is
the Ward Member of 9th Ward and he used to supply pigs. It is also
clear that both families of the deceased and the accused including
PW.6 – Mr. Narsimulu, brother of the deceased, depended on pig
rearing for their livelihood. There were disputes between PW.6 – the
elder brother of the deceased and accused No.1 regarding rearing of
pigs. The deceased used to support his brother (PW.6).
28. According to the prosecution, accused No.1 and 2 are
brothers. Accused No.5 and 6 are wife and husband and accused
Nos.1 and 2 are their sons. Accused Nos.3 and 4 are eking out their
livelihood by doing rearing of pigs and business of sale of pig meat.
Accused Nos.7 and 8 are the blood relatives of accused No.6.
Accused Nos.1, 2, 5 and 6 are also eking out their livelihood by
19
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
rearing of pigs at Bangalore. Since two years prior to the date of
incident, some quarrels took place between the brother of the deceased
(PW.6) with the support of the deceased due to the said pigs. The
deceased was also elected as Ward Member of Gram Panchayat.
Since then, he started obstructing the pigs business of accused Nos.1,
2, 5 and 6 as well as sale of pig meat of accused Nos.3 and 4 at
Balanagar Sandy. It is also the case of prosecution that about two
years prior to the date of incident, the deceased helped in selling
accused No.5’s house and taken an amount of Rs.50,000/- from the
parents of accused No.1. The deceased forcibly took an amount of
Rs.50,000/- from the family members of accused No.1, to construct a
Temple. The deceased imposed penalty against accused No.1 by
alleging that he committed theft of his pigs.
29. In the year 2014, accused No.1 beat the deceased due to the
disputes relating to the pigs. A case in Crime No.116 of 2014 was
also registered under Section – 324 of IPC. In this context, the
deceased had taken an amount of Rs.16,000/- from accused No.1 and
compromised the said case. It is also the case of the prosecution that
about 5 to 6 months prior to the date of incident, the deceased beat
accused No.1 alleging that accused No.1 had stolen the pig of Madasu
20
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
Mangamma and sold the same at Mahabubnagar. In this regard, the
deceased conducted a panchayat before their caste elders and imposed
fine on accused No.1.
30. On 28.01.2016, Akkamma and others also beat accused
No.1 and damaged his auto-rickshaw alleging that accused No.1 did
not pay the fine amount. In this regard also, a case in Crime No.16 of
2016 was registered against the said Akkamma & 7 others for the
offences under Sections – 324 and 427 read with 34 of IPC. On
account of the said crime, the deceased kept enmity against accused
No.1.
31. On 13.02.2015, the deceased family members had beat
accused No.5 and caused head injury. In this regard also, a case in
Crime No.33 of 2016 was registered for the offence under Section –
324 read with 34 of IPC against the relatives of the deceased i.e.,
Dommari Chinna Ramulu, Dommari Mangamma and Dommari
Akkamma. In the said incident also, the sister-in-law of the deceased,
Ankamma had also sustained severe injury to her right hand, for
which also, a case in Crime No.34 of 2016 was registered for the
offences under Sections – 324 and 323 read with 34 of IPC against the
family members of accused No.1. The said cases are under
21
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
investigation as on the date of filing the charge sheet. Further, the
deceased obstructed the pigs business of accused No.1 and warned
him with dire consequences and also obstructed his growth.
i) It is also further case of the prosecution that accused No.1
bore grudge against the deceased and decided to kill him with the help
of his relatives, took the pig cutting knife to Jadcherla and attached a
rod to the above knife with Gas welding and kept the same in his auto-
rickshaw. On 21.02.2016 at 9.00 P.M., accused No.1, his mother
Yadamma (accused No.6), brother (Accused No.2), father (accused
No.5), uncles (accused Nos.3, 4, 7 & 8) met in the house and
discussed about the acts of the deceased and decided to kill him on the
next day. On 22.02.2016, accused No.2 brought the auto-rickshaw
and put the same near their house. As per their pre-plan, accused No.1
sat in the said auto-rickshaw with knife, accused No.2 drove the same,
while accused Nos.3 and 4 also sat in the said auto-rickshaw and
observed the movements of deceased. Meanwhile, the deceased came
from his house towards Nandaram road side and smoking the
cigarette. At 9.00 P.M., they went near the deceased in auto-rickshaw,
accused No.1 forcibly stabbed the deceased over chest, face and throat
five to six times with knife, as a result, the deceased ready to fell
22
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
down, meanwhile, accused No.4 caught both the hands of deceased
towards back, accused No.3 stabbed the deceased over chest, throat
and face five to six times with the same knife took from the hands of
accused No.1. As a result, the deceased fell down, meanwhile
accused No.2 also stabbed the deceased several times with the same
knife took from the hands of accused No.3. Then, accused No.5 came
to the scene on TVS and covered as security. Accused No.6 to 8 were
present at the scene and encouraged them to kill the deceased by
making cries.
32. In view of the aforesaid prosecution case, it is clear that
there are disputes between the family of PW.6, brother of the deceased
and the family of accused No.1, and the deceased supported his
brother. Out of such disputes, accused No.1 appears to have bore
grudge against the deceased and decided to eliminate him.
33. Now, coming to the ocular evidence, the prosecution
examined PWs.1 and 2, said to be the eye-witnesses to the incident.
PW.1 is the wife of the deceased. She deposed that on the date of
incident i.e., 22.02.2016 at about 8.30 P.M. when her husband went
out to his brother’s house while talking over cell phone, accused
Nos.1 to 8 were armed with knives and sickles and attacked upon her
23
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
husband and injured him with knives and sickles, whereas PW.2,
minor son of the deceased and PW.1, deposed that on 22.02.2016 at
9.00 P.M., his father (deceased) was going towards the house of
PW.6, at that time, the accused came in an auto and attacked his father
with knives and axes and killed him. PW.3 also deposed simply that
the accused came in an auto-rickshaw and attacked the deceased with
knives and axes. PW.1 deposed that the accused attacked upon her
husband with knives and sickles, while her son (PW.2) deposed that
they attacked upon his father with knives and axes, and so also PW.3.
Thus, there are inconsistencies in their evidence. It is the case of
prosecution that firstly accused No.1 stabbed the deceased forcibly
with knife and then accused No.3 stabbed him with the very same
knife and thereafter accused No.2 stabbed the deceased with the very
same knife. So, according to the prosecution, accused Nos.1, 3 and 2
used only one knife and with it they stabbed the deceased, whereas as
per testimonies of PWs.1 to 3, the accused caused injuries to the
deceased with knives, sickles and axes. In Ex.P4 – scene of offence
panchanama, it is mentioned that the accused came with knives and
axes in auto-rickshaw and motorcycles and stabbed the deceased. But,
the Investigating Officer recovered and seized only one knife i.e.,
24
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
MO.1. Thus, there are serious contradictions with regard to
participation of all the accused or some accused in the commission of
offences and using number of knives/axes in such commission.
34. One more important aspect to be considered is, according
to the prosecution, accused Nos.1, 3 and 2 participated in stabbing the
deceased with MO.1 and accused No.4 caught both the hands of
deceased, while stabbing the deceased by accused No.3, whereas,
PWs.1 to 3 deposed that the accused came in auto and caused injuries
to the deceased. They did not depose specific overt acts against each
of the accused and they simply deposed that the accused caused
injuries to the deceased with knives and sickles/axes.
35. It is also the specific case of the prosecution that while
accused Nos.1 to 4 participating in the commission of offence,
accused No.5 came to the scene on TVS Moped and covered as
security, while accused No.6 to 8 were present at the scene and
encouraged them to kill the deceased by making cries. On this aspect,
though PWs.1 to 3 stated the names of accused Nos.1 to 4, 7 and 8 in
their statements recorded under Section – 161 of Cr.P.C., they did not
depose in their evidence. Therefore, on an analysis of the case of
25
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
prosecution and the evidence of PWs.1 to 3, there are omissions,
inconsistencies and contradictions with each other.
36. It is also the case of prosecution that on the date of incident,
when the deceased came from his house towards Nandaram road side
and smoking the cigarette, at 9.00 P.M. accused No.1 forcibly stabbed
the deceased. PW.1 deposed that on the date of incident at about 8.30
P.M., her husband went outside to purchase Maaza cool drink for their
children, and after bringing the same, her husband went out to his
brother’s house and while talking over cell phone, accused came there
in an auto. According to PW.1, there is compound wall around her
house, which blocks outside view, whereas, according to PW.2, he
witnessed the incident and accused went towards Nandaram road after
attacking his father. Neither PW.1 nor PW.2 specifically deposed
with regard to the exact location/scene of offence as to whether it had
occurred either in front of the house or on the road. They did not
specifically depose with regard to their presence as to whether they
were inside the house or outside the house at the time of incident.
They simply deposed that on the date of incident, accused came in an
auto-rickshaw and attacked upon the deceased. Thus, there are
omissions and inconsistencies in the testimonies of PW.1 and PW.2,
26
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
and the prosecution failed to explain the same. However, PW.3
deposed that while she was sitting under a tree near her house, PWs.4
and 9 were also present along with her. PW.2, Venkatesh and PW.5
were also present with them at the time of incident. But, PW.2 did not
depose with regard to the presence of PW.3 and others as deposed by
PW.3. This is yet another contradiction in the evidence of PWs.2 and
3. PW.3 also did not speak any specific overt acts against each of the
accused.
37. It is apt to note that PW.2 is a child witness. As on the date
of incident, his age is 11 years. In State of Rajasthan v. Chatra 1 the
Hon’ble Supreme Court while considering all the precedents, laid
down some principles regarding testimonies given by child witness,
and the same are as follows:
“14. The principles that can be adduced from an
overview of the aforesaid decisions, are:
a. No hard and fast rule can be laid down qua testing
the competency of a child witness to testify at
trial.
b. Whether or not a given child witness will testify is
a matter of the Trial Judge being satisfied as to the
ability and competence of said witness. To
determine the same the Judge is to look to the
manner of the witness, intelligence, or lack1
2025 INSC 360
27
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batchthereof, as may be apparent; an understanding of
the distinction between truth and falsehood etc.
c. The non-administration of oath to a child witness
will not render their testimony doubtful or
unusable.
d. The trial Judge must be alive to the possibility of
the child witness being swayed, influenced and
tutored, for in their innocence, such matters are of
ease for those who may wish to influence the
outcome of the trial, in one direction or another.
e. Seeking corroboration, therefore, of the testimony
of a child witness, is well-placed practical
wisdom.
f. There is no bar to cross-examination of a child
witness. If said witness has withstood the cross
examination, the prosecution would be entirely
within their rights to seek conviction even solely
relying thereon.”
38. In view of the above, it is clear that a child is a competent
witness if they can understand questions and give rational answers.
Age alone is not a disqualification. Corroboration is not mandatory in
every case involving a child witness. Conviction can be based on the
sole testimony of a child, if it is credible. Court must exercise greater
caution and scrutiny because children are susceptible to tutoring,
imagination and influence by others. Their testimony should be
consistent, natural and free from major contradictions. If the child’s
version appears truthful, it can be relied upon. However, the Court
should assess the child’s intelligence, ability to recall events,
28
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
understanding of truth versus falsehood and that the Court must ensure
the child is not tutored or coached. If tutoring is suspected, testimony
must be carefully evaluated or may be rejected. In the case on hand,
perusal of impugned judgment would show that learned trial Court did
not record anything about PW.2 on the aforesaid aspects.
39. PW.4 and PW.5, said to be the eye-witnesses to the
occurrence, did not support the prosecution. During cross-
examination, nothing useful to the prosecution was elicited.
40. PW.6, brother of the deceased, also deposed as that of
PWs.1 to 3. However, during cross-examination, he specifically
admitted that accused No.3, who was at the scene of offence, shifted
the deceased into the ambulance. Accused No.3 called the ambulance
and also informed the Sub-Inspector of Police from the cell phone of
son of PW.6. He further admitted that accused No.3 was not in the
group of persons, who killed his brother. His brother was attacked
with barise (spear). He did not count the number of weapons used by
the accused. He cannot say individual overt acts of accused Nos.1, 2
and 4 to 8. He also admitted that his brother’s dead body was in the
area of house plots opposite his house. The dead body was near the
road.
29
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
41. Thus, by virtue of the aforesaid evidence of PW.6, it can be
inferred that accused No.3 must not have participated in the
commission of offences as alleged by the prosecution. It is not in
dispute that, there are disputes between the family of PW.6 and the
family of accused No.1. Out of such enmity, it would be easy for
PW.6 to implicate accused No.3 in the commission of offences. But,
he did not depose any overt acts against accused No.3 and on the other
hand, he deposed that accused No.3 himself called the Ambulance and
shifted the deceased into the Ambulance and thereafter called the
police also. In the light of the said evidence of PW.6 coupled with
PWs.1 to 3, who did not speak specific overt acts against each accused
including accused No.3, role of accused No.3 in the commission of
aforesaid offences, can be ruled out.
42. Now, coming to the evidence of PW.9, neighbor of
deceased, deposed that on 22.02.2016 at about 8.30 P.M., she and her
neighbors including PW.1 sat in front of the house of PW.1. At that
time, the deceased walked towards his brother (Ramulu, who was not
examined by the prosecution) and PW.6’s house. Within five minutes,
they heard shouts. She rushed towards the place from which she heard
shouts. There is a layout of vacant sites near the house of Ramulu,
30
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
another brother of the deceased. There she saw accused Nos.1 and 2
stabbing the deceased with knives and some others are there in the
Auto, but she cannot identify them. During cross-examination, she
admitted that she is the daughter of elder brother of the deceased. She
cannot say the name of owner of the auto-rickshaw.
43. Thus, as per the evidence of PW.9, it is clear that there are
specific overt acts against accused Nos.1 and 2 only. Taking
advantage of disputes between the family of the deceased and accused
No.1, she could have stated the names of other accused also so as to
implicate them in the present case, but she could not depose in such
manner and on the other hand, she deposed the specific overt acts
against accused Nos.1 and 2 only. Moreover, the prosecution having
examined one brother of the deceased as PW.6 did not choose to
examine another brother, Ramulu. There is no explanation for the
same. Even during cross-examination, PW.9 specifically stated that
she did not see number of auto used and the details including the
names of some other persons came along with accused Nos.1 and 2.
44. By virtue of the evidence of PW.6, it is clear that accused
Nos.1 and 2 must have committed the aforesaid offences and that
there are no specific overt acts against accused Nos.4 to 8. The
31
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
prosecution failed to prove the same by producing cogent and
convincing evidence.
45. Coming to other evidence, PW.8, panch witness for Ex.P4 –
scene of offence panchanama with sketch. PW.10 is the panch
witness for confession-cum-seizure panchanama. According to him,
the police called him and LW.11 to act as panchas and accordingly
they went to Jadcherla Flyover, where accused Nos.1, 2, 3, 5 and 6
were present. As per confession of accused No.1, MO.1 – knife kept
under the passenger seat of auto was recovered. On the confession of
accused No.5, MO.2 – TVS Excel Moped was recovered. On the
confession of accused No.2, MO.3 – auto was recovered. They
observed blood stains in the auto on the back seat and also on MO.1.
During cross-examination, by learned defence counsel, this witness
specifically admitted that he did not see the accused except in the
Court. However, during re-examination by learned Public Prosecutor,
nothing useful was elicited. It appears this witness must have gained
over for the reason the cross-examination was not done on the very
same day on which his chief examination was done. He was
examined in chief on 01.05.2017, whereas his cross-examination was
32
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
on 06.06.2017. So, there was gap of more than one month from the
date of his chief examination till the date of his cross-examination.
46. As per the evidence of doctor (PW.11) and Ex.P9, death
was due to stab injuries/sickle or knife. Time of death is 12 hours prior
to his examination. As per the case of prosecution, the incident took
place on 22.02.2016 at about 8.30 P.M., whereas, the doctor
conducted post-mortem examination over the dead body of the
deceased from 12.30 P.M. to 2.00 P.M. on 23.02.2016. According to
him, time of death is 12 hours prior to his examination.
47. PW.13 is the Investigating Officer. He did not seize the
underwear and deposit in the Court. Perusal of his evidence would go
to show that he did not take any steps for conducting identification
parade. In this case, all the prosecution witnesses except saying that
the accused came and attacked the deceased, they did not depose
specific overt acts against each accused. However, as discussed above,
PW.9 only specifically deposed that accused Nos.1 and 2 stabbed the
deceased with knives.
48. As discussed above, death of the deceased is not in dispute.
It is not in dispute that there are disputes between the deceased and
33
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
accused with regard to rearing of pigs and sale of pig meat. The
aforesaid two crimes were also registered.
49. It is settled principle of law that, however grave the offence
may be, unless the same is proved by the prosecution beyond
reasonable doubt, the accused is presumed to be innocent.
50. On an overall analysis of entire evidence of prosecution
witnesses, it is clear that PWs.1 to 3 stated that all accused attacked
with knives/sickles/axes and no specific role or overt act assigned to
each accused. Such vague, sweeping allegations are insufficient for
conviction, especially in cases involving multiple accused. As stated
above, the said witnesses deposed using multiple weapons (knives,
sickles, axes) by the accused in commission of offences, but the
Investigating Officer seized only one weapon (knife) marked as
MO.1. The same creates serious doubt about truthfulness of the
evidence of PWs.1 to 3. PWs.1 and 2 admitted that their house had a
compound wall blocking view of inmates of the house. Therefore,
their deposition that they have witnessed the incident becomes less
reliable. PW.6, brother of the deceased specifically deposed that
accused No.3 himself called the ambulance, shifted the body and then
34
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
called the police. Such conduct is inconsistent with that of a guilty
person and it indicates absence of mens rea (guilty intention).
51. As far as accused Nos.4 to 8 apart from accused No.3 are
concerned, as discussed above, no specific overt acts are attributed to
them, and what all PWs.1 to 3 deposed are general in nature. As per
the evidence of PW.9, only accused Nos.1 and 2 were involved and
she did not mention the names of accused Nos.3 to 8. Independent
evidence does not support prosecution case against these accused and
thereby creates reasonable doubt about their participation. Thus, the
evidence of prosecution witnesses becomes unsafe for conviction,
especially against multiple accused. Even the prosecution failed to
prove prior meeting of minds and active participation of these accused
in commission of offences. Thus, there is no convincing evidence
with regard to pre-concert or planning involving accused Nos.3 to 8
and specific acts showing their participation. Therefore, the case of
prosecution as per contents of charge sheet that accused No.4 caught
hands of the deceased, accused No.3 stabbed the deceased over chest,
throat and face 5 to 6 times with the same knife took from the hands
of accused No.1, accused No.5 providing security by covering his
TVS Moped while accused Nos.6 to 8 encouraged them by cries etc.,
35
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
in the absence of cogent and convincing evidence cannot be believed.
If two views are possible, the one favourable to the accused must be
adopted. In view of the same, the evidence on record is omnibus in
nature, lacking specific overt acts and independent corroboration. The
material contradictions regarding weapons coupled with doubtful
presence of key witnesses and failure to establish common intention
create serious doubt about their involvement. Accordingly, accused
Nos.3 to 8 are entitled for acquittal by extending the benefit of doubt.
52. As far as accused Nos.1 and 2 are concerned, there is
consistency between ocular and medical evidence. There were
multiple stab wounds on chest, face and throat. PW.9, neighbour of
the deceased specifically deposed that accused Nos.1 and 2 stabbed
the deceased with a knife. PW.11, the doctor also deposed with
regard to the nature of injuries sustained by the deceased and the death
was due to stab injuries. The doctor further deposed that the stab
injury is caused by stabbing with a sharp weapon and such injury is
not possible with sickle, which has a curved point. In the case on
hand, the police recovered and seized the weapon as in MO.1 is a
knife. Recovery of weapon is a corroborative circumstance and links
accused Nos.1 and 2 to the aforesaid offences. It is settled law that the
36
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
evidence of independent witness must have higher value. His
evidence is consistent with medical evidence.
53. There was long standing enmity between PW.6 and accused
No.1 and thereby motive strengthens the case of prosecution.
Accused No.1 had direct hostility with deceased, while accused No.2,
brother of accused No.1, acted in concert with accused No.1. PW.9
specifically deposed that accused Nos.1 and 2 were at the scene.
There is no material contradicting their presence and role at the scene
of offence. There is no plausible explanation from Accused Nos.1
and 2 regarding their presence and circumstances of incident. Thus,
the prosecution has proved the guilt of accused Nos.1 and 2 beyond
reasonable doubt through reliable and corroborated evidence, whereas
the case against Accused Nos.3 to 8 suffers from material
contradictions, absence of specific overt acts, and lack of credible
evidence, entitling them to benefit of doubt. Learned trial Court did
not consider all the said aspects and recorded conviction against all
the accused.
54. It is settled law that Test Identification Parade (TIP) is not
substantive evidence, it is only corroborative. However, TIP becomes
important when the accused are not previously known to witnesses
37
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
and identification is made for the first time in Court. In this case,
PW.9 specifically identified that accused Nos.1 and 2 as persons who
stabbed the deceased. Her evidence is direct, categorical and reliable.
Thus, both the families had existing disputes over pig rearing, the
accused were known persons and not strangers. In such circumstances,
non-conducting of TIP do not affect the conviction of accused Nos.1
and 2.
55. However, it is apt to note that accused No.1 has filed an
application vide I.A. No.1 of 2021 in Crl.A. No.1289 of 2017, to
declare him as juvenile as on the date of the incident as per Section –
7A of the Juvenile Justice (Care and Protection of Children) Act, 2000
and extend the benefits laid down under the said Act, 2000 and the
Rules made thereunder to him, alternately issue a direction to the
respondent to produce Accused No.1 before any Medical Board to
determine his age as major as he attains the majority, pending disposal
of the criminal appeal.
56. Vide order dated 05.01.2022, a Co-ordinate Bench of this
Court passed an order while sustaining the conviction of accused No.1
for the offences punishable under Section – 147, 148, 302, 120-B read
38
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
with 149 of IPC, set aside the sentence of imprisonment imposed
against him and directed to be released him forthwith, if he is not
required in any other case, by observing thus:
“This application is filed to declare the petitioner
as Juvenile as on the date of incident of deciding the
Juvenility of the petitioner and as on the date of
incident as per Section 7(A) of Juvenile Justice (Care
and Protection of Children) Rules, 2007 and extend
benefits laid down under the provisions of Juvenile
Justice (Care and Protection of Children) Act and
Rules made there under to the petitioner alternatively
issue a direction, directing the respondent to produce
the petitioner/appellant/accused herein before any
medical board to determine the age of the petitioner
as major as he attains the majority, pending disposal
of the Crl.A.No.1289 of 2017.
Heard both sides and perused the record.
Smt. G. Jaya Reddy, learned counsel for the
petitioner/Accused No.1 would contend that the
petitioner/A1 is aged 17 years, 4 months and 18 days
as on the date of the alleged offence i.e., 21.02.2016.
As per Section 2(k) of the Juvenile Justice (Care and
Protection of Children) Act, 2015, a ‘juvenile’ or
‘child’ means a person has not completed eighteen
years of age. Further, as per Section 2(I) of the Said
Act, a ‘juvenile in conflict with law’ means a
juvenile, who is alleged to have committed an offence
39
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batchand has not completed eighteen year of age as on the
date of commission of such offence. Thus, the
petitioner/A1 is a juvenile as on the date of alleged
offence. In view of the same, the trial Court erred in
convicting and sentencing the petitioner/A1 vide
judgment, dated 24.08.2017 in S.C.No.394 of 2016
and ultimately prayed to allow the application as
prayed for. In support of his contentions, the learned
counsel had relied on a decision of the Hon’ble Apex
Court in Lakhan Lal v. State of Bihar [(2011) 2
Supreme Court Cases 251)].
Learned Additional Public Prosecutor for the State
opposed to declare the petitioner/A.1 as juvenile and
ultimately prayed to dismiss the application.
Vide order, dated 06.09.2021, passed in I.A.No.1
of 2021, this Court directed the trial Court to conduct
enquiry on the juvenility of the petitioner/A1 and file
a report. The report of the trial Court dated
01.11.2021, is placed before this Court. A perusal of
the said report reveals that the trial Court, basing on
the certificates of the petitioner/A1 i.e., Original
Bonafide Certificate dated 12.06.2009 issued by the
Headmaster, Chaitanya Bharathi Model Aided
School, Telkapally, Original Birth Certificate, dated
11.03.2020 issued by the Tahsildar, Balanagar
Mandal and Original Aadhar card bearing No.3725
5060 6183 etc., held that as on the date of the alleged
offence, the petitioner/A1 was aged 15 years 2
40
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batchmonths and 09 days. Further, there is no dispute with
the enquiry conducted by the trial court with regard to
the juvenility of the petitioner/A1 and also its
veracity. Similar question came up for consideration
before the Hon’ble Apex Court in Lakhan Lal‘s case
(supra) relied by the learned counsel for the
petitioner/A1, wherein, the Hon’ble Apex Court, after
discussing the relevant provisions of Juvenile Justice
Act and the case laws on the said topic, held as
follows:
Para 18: In the present case, when the
inquiry has been initiated against the appellants
herein, they were admittedly ‘juvenile’ even under
the provisions of 1986 Act but this issue has been
ignored by the trial Court and as well as the
appellate Court. There is no dispute whatsoever that
both the appellants have crossed the age of 18 years,
yet both the appellants, for the purposes of hearing
of this appeal continued as if they were to be
‘juvenile’.
Para 19: In Dharambir [(2010) 5 SCC 344:
(2010) 2 SCC (Crl) 1274] this Court took the view:
(SCC p.347, para 11)
“11. It is plain from the language of the
Explanation to Section 20 that in all pending
cases, which would include not only trials but
even subsequent proceedings by way of
revision or appeal, etc., the determination of
juvenility of a juvenile has to be in terms of
41
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batchclause (I) of Section 2, even if the juvenile
ceases to be a juvenile on or before 1-4-2001,
when the Act of 2000 came into force, and the
provisions of the Act would apply as if the
said provision had been in force for all
purposes and for all material times when the
alleged offence was committed.”
It is further held: (Dharambir case [(2010) 5 SCC
344: (2010) 2 SCC (Crl) 1274] this Court took the
view: (SCC p.348, para 15)
“15. It is, thus, manifest from a conjoint
reading of Sections 2(k), 2(I), 7-A, 20 and 49
of the Act of 2000, read with Rules 12 and 98
of the Juvenile Justice (Care and Protection of
Children) Rules, 2007 that all persons who
were below the age of eighteen years on the
date of commission of the offence even prior
to 1-4-2001 would be treated as juveniles
even if the claim of juvenility is raised after
they have attained the age of eighteen years
on or before the date of the commencement of
the Act of 2000 and were undergoing
sentences upon being convicted. In the view
we have taken, we are fortified by the dictum
of this Court in a recent decision in Harim
Ram, v. State of Rajasthan [(2009) 13 SCC
211: (2010) 1 SCC (Crl) 987). Para
Para 20: Thus this is the complete answer for
the determination of the issues that have arisen for
our consideration.
42
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
Para 22: the next question for our
consideration is as to what order and sentence is to
be passed against the appellants for the offences
committed by them under Section 302 read with
Section 34 IPC?
Para 23: Both the appellants have crossed
the age of 40 years as at present and therefore it will
not be conducive to the environment in the special
home and at any rate, they have undergone an actual
period of sentence of more than three years the
maximum period provided under section 15 of the
2000 Act. In the circumstances, while sustaining
the conviction of the appellants for the offences
punishable under Section 302 read with Section 34
IPC, the sentences awarded to them are set aside.
They are accordingly directed to be released
forthwith. This view of ours to set aside the
sentence is supported by the decision of this Court
in Dharambir [(2010) 5 SCC 344: (2010) 2 SCC
(Crl) 1274].
In the instant case, it is borne by the record that the
age of the petitioner/A1 is aged 15 years, 2 months
and 9 days as on the date of the alleged offence, as
per the contents of the report dated 01.11.2021 and
same is accepted. The correct age of the
petitioner/A1 was not brought to the notice of the trial
Court but continued the proceedings under a
presumption that the petitioner/A1 was 19 years old.
It is not in dispute that the petitioner/A1 is in judicial
43
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
custody since 24.08.2017 i.e., from the date of
decision rendered in the subject Sessions Case. It is
also brought to the notice of this Court that on earlier
occasion also the petitioner/A1 was in judicial
custody for more than three months. By this time, the
petitioner/A1 has crossed 21 years of age.
Furthermore, the petitioner/A1 has undergone
imprisonment for more than 4 years, which is more
than the period prescribed under the Juvenile Justice
Act to detain him in special Home. Therefore, it is
not conducive to the petitioner/A1 to lodge him in the
Special Home for any period or to conduct
proceedings against him afresh in terms of Juvenile
Justice Act. Further, the learned counsel for the
petitioner/A.1 has not argued on merits and wanted
this Court to determine the juvenility of the
petitioner/A1 and grant relief in terms of Lakhan
Lal‘s case cited by her.
Under these circumstances, while sustaining the
conviction of the petitioner/A1 for the offences
punishable under Sections 147, 148, 302, 120-B
r/w Section 149 IPC, vide judgment dated
24.08.2017 passed in S.C.No.394 of 2016 by the
learned Principal Sessions Judge, Mahabubnagar,
the sentence of imprisonment imposed against
him, is set aside. The petitioner/A1 is directed to
be released forthwith, if he is not required in any
other case. This application is, accordingly,
allowed.”
44
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
57. Perusal of the impugned judgment would reveal that
learned trial Court found not guilty of all the accused for the offences
punishable under Sections – 120B and 147 of IPC and found guilty of
the offences punishable under Sections – 148 and 302 read with 149 of
IPC. However, the Co-ordinate Bench of this Court having observed
that accused No.1 was a juvenile as on the date of commission of
offence, inadvertently confirmed the conviction without there-being
any hearing in the appeal, and also set aside the sentence of
imprisonment imposed on accused No.1 instead of modifying the
same in accordance with the Juvenile Justice (Care and Protection of
Children) Act, 2000.
58. In view of the specific evidence against accused Nos.1 and
2 only and no evidence against accused Nos.3 to 8, the essential
requirement of five or more persons to constitute an unlawful
assembly is not satisfied. Therefore, conviction under Section – 148
of IPC is also liable to be set aside. Further, since number of accused
proved falls below five, the essential requirement of an unlawful
assembly is not satisfied. Therefore, conviction under Section – 302
read with 149 of IPC cannot be sustained. However, as accused Nos.1
and 2 are proved to have jointly committed the murder, their
45
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
conviction is liable to be confirmed under Section – 302 read with 34
of IPC as against Section – 302 read with 149 of IPC. Thus, the
impugned judgment is liable to be set aside in so far as accused Nos.3
to 8 are concerned for the offences under Sections – 148 of IPC and
302 read with 149 of IPC. As against accused Nos.1 and 2, the
impugned judgment is also liable to be set aside for charge under
Section – 148 of IPC, while confirming the conviction against them for
the offence under Section – 302 read with 34 of IPC as against the
offence under Section – 302 read with 149 of IPC.
59. The Criminal Appeal No.1289 of 2017 is accordingly
allowed in part setting aside the conviction recorded and sentences of
imprisonment imposed thereof against accused Nos.5 and 6, vide
judgment dated 24.08.2017 in S.C. No.394 of 2016 by learned
Principal Sessions Judge, Mahabubnagar, and so also against accused
Nos.1 and 2 for the offence under Section – 148 of IPC alone, while
confirming the conviction recorded against accused Nos.1 and 2 for
the offence under Section – 302 read with 34 of IPC as against the
offence under Section – 302 read with 149 of IPC, and the sentence of
life imprisonment imposed against accused No.2 for the said offence.
However, the sentence of life imprisonment imposed against accused
46
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
No.1 for the aforesaid offence is modified to that of the period
provided under Section – 15 of the Juvenile Justice (Care and
Protection of Children) Act, 2000. As stated above, as per the order
dated 05.01.2022, he was directed to be released forthwith, if he is not
required in any other case and accordingly he was released on bail.
i) In view of the above, accused No.1 and 2 are acquitted of the
charge under Section – 148 of IPC. Fine amounts, if any, paid by
them in relation to the charge under Section – 148 of IPC are ordered
to be returned to them after expiry of appeal time.
ii) As far as accused No.2 is concerned, he is on bail vide order
dated 25.09.2023 in I.A. No.2 of 2023. Therefore, accused No.2 is
directed to surrender before learned Principal Sessions Judge,
Mahabubnagar, within one (01) month from today for serving out
remaining sentence of imprisonment. If he fails to surrender, learned
Princpal Sessions Judge, Mahabubnagar, shall take necessary steps in
accordance with law.
60. Criminal Appeal Nos.1079 of 2017 filed by accused Nos.7
and 8 and Criminal Appeal No.1089 of 2017 filed by accused Nos.3
and 4 are allowed setting aside the convictions recorded and sentences
of imprisonment imposed thereof against accused Nos.7 & 8 and 3 &
47
KL,J & VRKR,J
Crl.A. Nos.1289 of 2017 & batch
4, respectively, vide judgment dated 24.08.2017 in S.C. No.394 of
2016 by learned Principal Sessions Judge, Mahabubnagar.
i) Accused Nos.3 to 8 are acquitted of the aforesaid charges.
Bail bonds, if any, furnished by them stand cancelled. Fine amounts,
if any, paid by accused Nos.3 to 8 are also ordered to be returned to
them after expiry of appeal time.
As a sequel thereto, miscellaneous applications, if any, pending
in these appeals shall stand closed.
_________________________________
K. LAKSHMAN, J
_________________________________
VAKITI RAMAKRISHNA REDDY, J
7th April, 2026
Mgr