IMPORTANT POINT
Instigation alone does not establish culpability for murder if the accused did not directly participate in the act of violence.

JUDGMENT :

K.Sreenivasa Reddy, J.

De facto complainant in Sessions Case No.90 of 2016 on the file of the XIII Additional Sessions Judge, Guntur at Narasaraopet (hereinafter referred to, as ‘the learned Sessions Judge’) is the appellant in the present Criminal Appeal No.1161 of 2016. Accused No.2 was tried for the offence punishable under Sections 302 read with 34 of the Indian Penal Code, 1860 (for brevity ‘IPC’) and acquitted of the said offence in terms of Section 235 (1) of the Code of Criminal Procedure, 1973 (for brevity ‘CrPC’). Accused No.1 was tried and found not guilty of the offence punishable under Section 302 IPC, but found guilty for the offence punishable under Section 304 Part-II IPC and convicted in terms of Section 235 (2) CrPC vide Judgment, dated 06.09.2016 and sentenced to undergo rigorous imprisonment for a period of seven (07) years and to pay a fine of Rs.2,000/-, in default of payment of fine, he was directed to suffer simple imprisonment for a period of six (06) months. Challenging the conviction and sentence vide Judgment, dated 06.09.2016, accused No.1 preferred Criminal Appeal No.916 of 2016. Whereas, de facto complainant preferred Criminal Appeal No.1161 of 2016 challenging the acquittal of accused No.2 and for not convicting accused No.1 of the offence punishable under Section 302 IPC.

2. On 09.07.2024, Sri G.V.S.Mehar Kumar, learned counsel for the appellant/accused No.1 in Criminal Appeal No.916 of 2016 submitted that during the pendency of the Criminal Appeal No.916 of 2016, the appellant/accused No.1 died in a road accident; as such, he submitted that Criminal Appeal may be dismissed as abated. This Court directed the learned counsel to file a memo along with Death Certificate of appellant in Criminal Appeal No.916 of 2016 i.e. accused No.1. Further, the learned Special Public Prosecutor was also directed to get instructions about the factum of death of the appellant in Criminal Appeal No.916 of 2016. Accordingly, learned Special Public Prosecutor, on instructions, submitted that the appellant/accused No.1 died on 10.06.2021 and filed death certificate to that effect. Accordingly, on 20.07.2024, Criminal Appeal No.916 of 2016 preferred by appellant/accused No.1 was dismissed as abated.

3. The substance of the charges as against the accused is that accused No.1 on 23.03.2015 in the fields of Agnigundala village at about 6.00 AM, caused the death of the deceased viz. Thirumalasetty Venkata Kotaiah @ Chinni (hereinafter referred to, as ‘the deceased’) by beating him with an iron rod and thereby committed an offence punishable under Section 302 IPC. In respect of accused No.2, on the same day, accused No.2 instigated accused no.1 to get rid of the deceased which lead to cause death of the deceased and thereby committed an offence punishable under Section 302 read with 34 IPC.

4. The case of the prosecution, in brief, is as follows:

The deceased and the material prosecution witnesses are all residents of Agnigundala village. P.W.1 is the son of the deceased. P.Ws.2 and 3 are cousins of P.W.1 and related to accused Nos.1 and 2. P.W.3 is cousin of P.W.1. The prosecution witnesses and accused are related to each other. P.W.1 owns Ac.2.30 cents of wetland situated on the eastern side of their village. Their family was cultivating Ac.1.00 cent which was adjacent to their land belonged to one Sandra Peda Kondaiah of Mukallapadu village, on lease. Accused No.1 was having Ac.0.80 cents of land on eastern side of P.W.1’s land. Accused No.2 is having Ac.2.00 cents of land on northern side of their land. The level of P.W.1’s land was a bit higher than the level of the land of accused, as such, the water flows to the land of the accused from P.W.1’s land. Even the waste/drain water also flows from P.W.1’s land to the land of accused. In connection with that, disputes arose among themselves many a time. As they are all relatives, no cases were filed against the accused.

On 23.03.2015 at about 5.30 AM, P.Ws.1 and 4 wen