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2023 Supreme(SC) 644
SUPREME COURT OF INDIA
S. RAVINDRA BHAT, ARAVIND KUMAR, JJ.
Boini Mahipal and Another – Appellants
Versus
State of Telangana – Respondent
Criminal Appeal No. 1750 of 2023
Decided On : 19-07-2023
For the Appellant(s) : Ms. Prity Kumari, Adv. Ms. Neha Singh, AOR Mr. B Laxman, Adv.
For the Respondent(s): Mr. Sriharsha Peechara, Adv. Mr. Rajiv Kumar Choudhry, AOR Ms. Pallavi, Adv. Ms. Kriti Sinha, Adv. Mr. Duvvuri Subrahmanya Bhanu, Adv. Ms. Kriti Sinha, Adv.
IMPORTANT POINT
Grievous hurt – In absence of any incriminating material or other corroborative evidence pointing participation of accused in incident, conviction under Section 323 read with Section 34 of IPC cannot be sustained.
Headnote:
Indian Penal Code, 1860 – Sections 323/34 – Grievous hurt – Common intention – Conviction and sentence – There was no cogent and positive evidence available to prove or establish fact that appellants have assaulted deceased – Prosecution has attempted to project the case that relatives of deceased were beaten or assaulted by appellants – No evidence is forthcoming in this regard – In absence of same, on hypothesis conviction of appellants cannot be sustained – In absence of any incriminating material or other corroborative evidence pointing participation of appellants-accused in incident, conviction of appellants under Section 323 read with Section 34 of IPC cannot be sustained – Judgment and order of sentence passed by courts below against appellants set aside. (Paras 9, 11, 12 and 13)
Facts of the case:
Short point that arises for consideration in this appeal is whether the Judgment and Order of sentence convicting the petitioners (accused No. 3 and 4) is to be sustained or set aside.
Findings of Court:
Appellants are ordered to be released forthwith, if not required in any other case. Their bail bonds stand discharged. Surety Bonds, if any, having been executed, stand discharged.
Result : Appeal allowed. Appellants acquitted.
JUDGMENT :
ARAVIND KUMAR, J.
1. The short point that arises for our consideration in this appeal is:
“Whether the Judgment and Order of sentence convicting the petitioners (accused No. 3 and 4) is to be sustained or set aside.”
2. Facts shorn of unnecessary details as laid by the prosecution before the jurisdictional court are to the following effect:
On 13.04.2012 at 08:10 a.m. a complaint came to be lodged before Koheer Police Station alleging that on 08.04.2012 at 09:00 p.m., A-1 to A-6 came to their house and assaulted Smt. Anjamma (deceased) with hands and A-1 kicked forcefully in her stomach due to which she fell down to the ground. It was further alleged that initial treatment was given to her at Government hospital, Zaheerabad and subsequently at Osmania Hospital Hyderabad which was not fruitful and she succumbed to the injuries sustained by her on 12.04.2012 at 09:00 p.m.
3. The said complaint came to be registered in Crime No. 27 of 2012 for the offences punishable under Section 302, 303, 504 read with Section 34 of IPC and on conducting investigation, chargesheet was laid against the accused persons for the offence punishable under Section 302 read with section 34 IPC. After trial, Learned Sessions Judge by judgment dated 15.11.2012 convicted A-1 to A-4 and A-6 for the offence punishable under Section 323 read with Section 34 IPC and acquitted them for the offence punishable under Section 302 read with Section 34 IPC and sentenced them to undergo rigorous imprisonment for six months and to pay a fine of Rs. one thousand each and in default to undergo simple imprisonment for a period of two months.
4. Aggrieved by the said judgment, appellants herein filed appeal in Criminal Appeal No. 1168 of 2012. The High Court by common judgment dated 11.01.2023 dismissed the appeals. Hence, this appeal has been filed by Accused Nos.3 and 4. We have heard the arguments of Ms. Neha Singh, Ms. Prity Kumari and Shri B. Laxman, Learned Counsels appearing for the appellants and Shri Sriharsha Peechara, Shri Rajiv Kumar Choudhry, Ms. Pallavi and Mr. D.S. Bhanu, Learned Counsels appearing for the respondent.
5. It is a contention of the Learned Counsel appearing for the appellants that courts below failed to appreciate the fact that PW-5 was a distant relative of deceased and he has clearly admitted in his testimony that no overt act could be attributed to the appellants and it is only accused No. 1 who had kicked the deceased. He would also draw our attention to his admission whereunder PW-5 has admitted that family members of deceased and accused had formed a crowd and mere presence of the appellants at the scene of crime did not establish the common intention or their participation to constitute vicarious liability under Section 34 of IPC. She would also submit that Sessions Judge has not recorded any finding as to how the ingredients of Section 34 of IPC had been satisfied and based on vague statements and even in absence of corroborative material appellants have been convicted which cannot be sustained. She would further submit that no injury certificate of any of the relatives of the deceased were produced by the prosecution to establish the injuries alleged to have been sustained by them.
6. She would elaborate her submissions by contending that post-mortem report which has been relied upon by the courts below to convict the appellants do not incriminate the appellants herein. She would also contend that contradictions in the testimonies of prosecution witnesses more particularly PW-1 to PW-4 has not been taken note of and on this ground also the conviction is reliable to be set aside. Hence, she prays for appeal being allowed.
7. Per contra Shri Sriharsha Peechara, Shri Rajiv Kumar Choudhry, Ms. Pallavi and Shri D. S. Bhanu, the Learned Counsel appearing for the respondent would support the orders of the courts below and pray for dismissal of the appeal.
Findings and Conclusion on points Formulated above:
8. At the outset it requires to b
