Boini Mahipal vs The State Of Telangana

Non-reportable IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1750 of 2023

BOINI MAHIPAL AND ANR …APPELLANTS

VERSUS

STATE OF TELANGANA RESPONDENT(S)

JUDGMENT

Aravind Kumar, J.

1. The short point that arises for our

consideration in this appeal is:

Signature Not Verified Digitally signed by Harshita Uppal Date: 2023.07.20

"Whether the Judgment and Order of 15:26:34 IST Reason:

sentence convicting the petitioners 2

(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

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 4

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 5

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 6

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 be noticed that

Learned Sessions Judge while appreciating the

evidence tendered by the prosecution has opined

as under:

7

“17. From the above evidence, xxx in the incident. The evidence of PW-5 shows that A-1 kicked the deceased with his leg and the remaining accused were beating the family members of PW-2. But his evidence that he could not clearly make out the specific overacts of the accused, as the family members of PW-2 and the accused formed into a crowd, can be taken into consideration, not for concluding that the other accused did not beat the deceased, but xxx circumstances.

(Emphasis supplied)

9. From the above finding it would clearly

emerge that there was no cogent and positive

evidence available to prove or establish the fact

that appellants herein (A-3 and A-4) having

assaulted the deceased. On the other hand the

prosecution has attempted to project the case that

relatives of the deceased were beaten or assaulted

by the appellants herein. If it were to be so,

nothing prevented the relatives of deceased,

namely, PW-2 to PW-5 who had accompanied the 8

deceased to the hospital to get themselves treated

for any purported or alleged injuries sustained by

them, if at all, they had received any medical

treatment for said injuries. However, no evidence

is forthcoming in this regard. In the absence of the

same, on hypothesis conviction of the appellants

cannot be sustained.

10. It is the consistent stand of these witnesses

(PW-2 to PW-5) that accused No.1 had kicked the

deceased on her stomach. Nowhere they have

whispered about any overt acts of appellants

herein. In fact, appellate court while re-

appreciating evidence has observed as under:

“20. Even though the learned counsel xxx place of incident, a careful scrutiny of the cross-

examination of PWs 2 and 5 reveals that it is only A-1, who kicked the deceased with his legs and not the others. The other witnesses have not attributed any overt acts to the other accused accept making a 9

bald statement that all the accused beat the deceased.

Even though PWs 1 to 4 xxx beatings of the accused. In the absence of any cogent and convincing evidence to prove that the rupture of ileum is only due to the injuries inflicted by the accused, the death of the deceased cannot be attributed to the accused.

(Emphasis supplied)

11. The prosecution has thus failed to drive

home the guilt of the accused beyond reasonable

doubt and we say so for the simple reason that

courts below itself had found that evidence

tendered by the prosecution did not clearly

establish two facts namely:

(1) The appellants herein having assaulted the deceased;

(2) The alleged injuries sustained by PW-2 to 5 had remained as a bald statement without proof.

12. In the absence of any incriminating

material or other corroborative evidence pointing 10

the participation of appellants-accused in the

incident, the conviction of appellants under

Section 323 read with Section 34 of IPC cannot

be sustained.

13. For the reasons afore-stated we allow

the appeal by setting aside the Judgment and

order of sentence passed by the courts below

against appellants and acquit the appellants.

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.

……………………………….J. (S. Ravindra Bhat)

…………………………………J. (Aravind Kumar)

New Delhi July 19, 2023 11