VELTHEPU SRINIVAS AND OTHERSversusSTATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) AND ANR.

                   [2024] 2 S.C.R. 1 : 2024 INSC 87

              Velthepu Srinivas and Others
                            v.
State of Andhra Pradesh (Now State of Telangana) and Anr.
                    (Criminal Appeal No. 2852 of 2023)
                              06 February 2024
      [B.R. Gavai and Pamidighantam Sri Narasimha,* JJ.]

                           Issue for Consideration
       The courts below, if justified in convicting the four accused u/ss.
       302/34 IPC and imposing sentence for life for committing murder
       of the victim.

                                  Headnotes
       Penal Code, 1860 – ss. 302/34, s. 304 Part II – Murder with
       common intention – Culpable homicide not amounting to
       murder, when – Political animosity between two groups
       led to the murder of the deceased – Prosecution witnesses
       corroborating incident of accused A 1 stopping an auto,
       dragging the deceased to the house of A-4, and the other
       accused-A2, A4 joined A-1 and assaulted the deceased with
       various weapons, whereas, A-3 used a stone to assault the
       deceased – Conviction u/ss. 302/34 and sentence for life
       imposed by the courts below – Correctness:
       Held: As regards A1, A2 and A4, the decision of the trial court and
       the High Court is concurred with – Their analyses and conclusions
       are based on correct appreciation of evidence and law – However,
       as regards, the culpability of A-3 for murder, testimonies of four
       eye-witnesses state that the A-3 had used a stone to hit the
       deceased’s head, he never took axe in his hands – Perusal of the
       evidence would reveal that it is not the case of the prosecution
       that A-3 was along with the other accused while the deceased
       was dragged to the house – After the other accused assaulted
       the deceased with sword, A-3 came thereafter and assaulted the
       deceased with stone lying there – Evidence insufficient to deduce
       a conclusion that A-3 shared the common intention with the other
       accused to cause the murder of the deceased – In fact, both the
       courts mechanically drew an inference against A3 u/s. 34 merely

* Author
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     based on his presence near the scene of offence and his familial
     relations with the other accused – Even though, A-3 might not have
     had the common intention to commit the murder, nevertheless, his
     participation in the assault and the wielding of the stone certainly
     makes him culpable for the offence that he has committed – A-3
     should have had the knowledge that the use of a stone to hit the
     head of the deceased is likely to cause death – Thus, he is held
     guilty of the offence u/s. 304 Part II – Conviction and sentence of
     A-1, A-2 and A-4 u/s. 302/34 is upheld, however, the conviction
     of A-3 is modified to s. 304 Part II and sentenced to 10 years
     imprisonment. [Paras 17, 23, 28, 30, 31, 32]

                              Case Law Cited
          Camilo Vaz v. State of Goa, [2000] 2 SCR 1088 : (2000)
          9 SCC 1; Bawa Singh v. State of Punjab 1993 Supp
          (2) SCC 754; Sarup Singh v. State of Haryana (2009)
          16 SCC 479; Ghana Pradhan & Ors. v. State of Orissa
          1991 Supp (2) SCC 451 – referred to.

                                List of Acts
     Penal Code, 1860

                             List of Keywords
     Murder; Common intention; Witnesses; Corroboration; Sentence for
     life; Evidence; Eye-witnesses; Appreciation of evidence and law;
     Testimonies; Oral and documentary evidence; Scene of offence;
     Post-mortem report; Likely to cause death.

                            Case Arising From

     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.2852
     of 2023
     From the Judgment and Order dated 26.04.2022 of the High Court
     for the State of Telangana at Hyderabad in CRLA No.308 of 2005

                         Appearances for Parties
     Gaurav Agrawal, D. Abhinav Rao, Ms. Prerna Robin, Rahul Jajoo,
     Devadipta Das, Advs. for the Appellants.
     Sirajudeen, Sr. Adv., Krishna Kumar Singh, Sri Harsha Peechara,
     Duvvuri Subrahmanya Bhanu, Ms. Pallavi, Ms. Kriti Sinha, Akshat
[2024] 2 S.C.R.                                                          3

                   Velthepu Srinivas and Others v.
      State of Andhra Pradesh (Now State of Telangana) and Anr.

     Kulshreshtha, Rajiv Kumar Choudhry, G.Seshagiri Rao, Gaichangpou
     Gangmei, Rahul Aggarwal, Amit Pratap Singh, Ms. Lothungbeni T.
     Lotha, Yimyanger Longkumer, Advs. for the Respondents.

                Judgment / Order of the Supreme Court

                                  Judgment
     Pamidighantam Sri Narasimha, J.
1.   This criminal appeal by appellants (accused 1 to 4) is against the
     concurrent conviction under Section 302 read with Section 34 and
     sentence for life imposed by the Trial as well as the Telangana High
     Court. For the reasons to follow, while we confirm the judgment and
     sentence with respect to A-1, A-2 and A-4, the conviction and sentence
     of A-3 is however modified to Section 304 Part II and sentenced to
     10 years imprisonment. The details of the crime, trial, decisions of
     the Courts, followed by our analyses and conclusions are as follows.
2.   The case of the prosecution is that the accused 1 to 4 belonging to
     the same family, and the deceased, come from the same village -
     Janda Venkatpur, Asifabad, Telangana. It is alleged that the sister of
     the deceased and the wife of A-4 were political aspirants and they
     contested the Gram Panchayat elections. In the said elections, the
     sister of the deceased succeeded and the wife of A-4 lost and that,
     unfortunately, led to an animosity between the two groups, eventually
     leading to the murder of the deceased which is described as follows.
3.   On 15.11.2001, at about 8AM, the deceased was going to Luxettipet
     on some work in an auto-rikshaw. In the same auto-rikshaw, one
     Sanga Swamy @ Thruputhi (PW-6) and Smt. Chetimala Rajitha
     (PW-9) were travelling as co-passengers. When the auto reached
     the house of A-4, it is alleged that A-1 stopped the auto-rickshaw
     and dragged the deceased out by pulling his legs. At the same time,
     A-2 joined A-1 and both the accused dragged the deceased towards
     the house of A-4. At that point, it is alleged that A-1 to A-4 attacked
     the deceased with an axe, a sword, a stone and a knife, thereby
     inflicting severe bleeding injuries leading to death of the deceased
     on the spot.
4.   The son of the deceased, Kona Kiran Kumar, later examined as
     PW-1, being an eyewitness, proceeded to the police station and
     reported the incident at about 9PM by way of a complaint (Exhibit
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     P-1). The Sub-Inspector of Police (PW-17), Luxettipet received the
     complaint and registered an FIR (Exhibit P-32), and took up the
     investigation. He then recorded the statement of PW-1.
5.   In view of the gravity of the crime, the Circle Inspector of
     Police (PW-18) took up further investigation and immediately
     proceeded to the village to examine the scene of offence. He
     found the body of the deceased in the front yard of A-4’s house.
     He enabled PW-15 to take photographs of the dead body
     (Exhibits P-21 to 30) and himself drew the sketch of the scene
     of offence (Exhibit P-37). He also conducted an inquest over
     the body of the deceased in the presence of PW-10 and
     PW-12 (panch witnesses). The inquest report was marked as Exhibit
     P-5. He also seized a stick (MO.4), control earth (MO.5), blood-
     stained earth (MO.6), cotton full shirt (MO.7) and a baniyan under
     cover of a panchnama. PW-18 recorded the statements of PWs 4,
     5, 6, 7, 8, 9, and 15. The prosecution maintained that PWs 1, 3, 4,
     6, 7 and 8 are eyewitnesses to the incident.
6.   The Judicial Magistrate First-Class (PW-16) also recorded the
     statements of PWs 1 to 9 under Section 164 of the CrPC. The Post-
     mortem over the dead body of the deceased was conducted by Dr
     Victor Dinesh (PW-11) at 3PM on 15.11.2001 at the Government
     Civil Hospital. PW-11, in his report, found 8 incised wounds, 3 partial
     amputations and 1 deep lacerated wound. It was his opinion that the
     cause of death was due to cardio-pulmonary arrest due to transaction
     spinal cord at atlanto occipital joint.
7.   The Sub-Inspector (PW-17) is said to have apprehended all the
     accused on 23.11.2001 and produced them before PW-18 in his
     office. PW-18 recorded the confessional statement of the accused in
     the presence of PW-13 and PW-14 (panch witnesses). In pursuance
     of the confession, all the accused led him and the panch witnesses
     to the field of one Mr. Appani Gangaiah at Laximpur Shivar. There,
     A-1 recovered and showed an axe, A-2 a sword and A-4 a knife
     which were all hidden behind the bushes in the field. PW-18 seized
     these objects in front of PW-11 to PW-13, later came to be marked
     as Exhibits MOs 1 to 3. PW-18 also recovered a lungi belonging to
     A-1 and one belonging to A-2 (Exhibit MO’s 9 and 10, respectively).
     These material objects were sent to a Forensic Lab in Hyderabad,
     the report of which is marked as Exhibit P-16.
[2024] 2 S.C.R.                                                        5

                   Velthepu Srinivas and Others v.
      State of Andhra Pradesh (Now State of Telangana) and Anr.

8.   After completion of the above referred investigation, a charge-
     sheet was filed on 09.01.2002. The Judicial First-Class Magistrate,
     Luxettipet took cognizance of the offence under Section 302 read
     with Section 34 of IPC, against all the accused. On production of the
     accused, the Magistrate furnished copies of the charge-sheet and
     other connected documents and committed the case to the Court
     of Sessions and the Learned Sessions Judge numbered the trial as
     Sessions Case No. 523 of 2003. After the charges were framed, the
     accused pleaded not guilty and sought trial.
9.   At the trial, the prosecution examined 18 witnesses being PW-1 to
     PW-18, and marked 37 documents and 10 Material Objects (MO’s).
     After the closure of evidence, the accused were examined under
     Section 313 CrPC with reference to the incriminating material found
     against them in the evidence of the prosecution witnesses, and they
     denied the same. There are no defence witnesses.
10. The Trial Court, by its elaborate judgment dated 24.02.2005, found
    all four accused guilty for the murder of the deceased and convicted
    them under Section 302 read with Section 34 of the IPC. Accordingly,
    they were sentenced to undergo imprisonment for life and to pay a
    fine of Rs. 500 each, in default, to undergo simple imprisonment of
    one month. All the accused appealed to the High Court.
11. For the completeness of narration, we may indicate that the High Court
    initially acquitted all the accused by its judgment dated 21.06.2007,
    but in appeal to this Court, their conviction and sentences were
    set-aside, and the criminal appeal was remanded back to the High
    Court for fresh consideration. It is in this background that the order
    impugned came to be passed by the High Court.
12. After remand, the High Court confirmed the judgment of the Trial
    Court and dismissed the criminal appeals. The Special Leave Petition
    filed by the accused was admitted on 01.08.2022 and this is how we
    have heard Shri Gaurav Agrawal, learned counsel for the appellants
    and Shri Krishan Kumar Singh learned counsel for the State and
    Shri Sirajudeen, learned senior counsel for the respondent No. 2.
13. Findings of the Trial Court: The Trial Court had examined the
    credibility of the Prosecution witness in great detail. According to
    the Trial Court, PWs 1, 3, 4, 6, 7 and 8 were eyewitnesses to the
    incident and their testimonies were consistent. Among them, PW-6’s
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     testimony was a clinching piece of evidence as he was privy to the
     incident from the very beginning. He was subjected to intense cross-
     examination with respect to his residence and other details about
     the incident. Except for minor variations, the Trial Court found his
     testimony unshaken, being consistent and natural. The Trial Court
     found the testimonies PW-1, PW-3, PW-4, PW-7, PW-8 corroborating
     the incident of stopping an auto, dragging the deceased out, and
     subsequently assaulting the deceased with various weapons.
14. Collectively, the witnesses reiterated that A-1 stopped the auto-
    rickshaw and pulled the deceased out and A-2 attacking the
    deceased’s hands with a sword. As they reached A-4’s house, A-4
    took the sword from A-2 and struck the deceased on his head. A-4
    also inflicted injuries by a knife. The common account about A-3 is
    that he hit the deceased on the head with a stone. Accused No. 1
    continued the attack and hit the deceased with an axe. Largely, these
    witnesses recounted a consistent narrative of the attack, identifying
    the weapons used and the roles of each accused.
15. Judgment of the High Court: According to the High Court, the
    accounts of PWs 1, 3, 4, 6, 7 and 8, who witnessed the incident,
    converge and are consistent with the injuries, weapons and motive
    for the murder of the deceased. The High Court correctly relied on
    the evidence of PW-6 who was in an auto-rickshaw along with the
    deceased on the day of the incident. PW6’s evidence that he boarded
    the auto-rickshaw of PW-5, followed by the deceased and Rajitha
    (PW-9) joining him, was believed by the High Court.
16. The account of PW6 being corroborated by the evidence of PWs
    1, 3, 4, 7 and 8, the High Court held that the evidence conclusively
    establishes the guilt of the accused beyond reasonable doubt. The
    High Court also noted the submission relating to the contradictions
    in the Complaint (Ex. P1) and the testimonies of PWs 1, 3, 4, 6, 7
    and 8, specifically relating to the acts of assault, however, the High
    Court came to the conclusion that they were minor in nature.
17. Though the High Court saw that the trial court extensively examined
    the evidence and considered all the submissions, it has nevertheless
    considered the evidence afresh and after a detailed examination,
    arrived at the same conclusion. We have given our anxious
    consideration and have scrutinised the evidence of all the eye-
[2024] 2 S.C.R.                                                             7

                   Velthepu Srinivas and Others v.
      State of Andhra Pradesh (Now State of Telangana) and Anr.

     witnesses in detail. We are in full agreement with the decision of the
     Trial Court and the High Court. Their analyses and conclusions are
     based on correct appreciation of evidence and law. However, there
     is one aspect which stands out in the above-referred analyses of the
     Trial Court and the High Court, and that pertains to the conclusion on
     the culpability of A-3 for murder. We will now examine the evidence
     as against A-3.
18. Evidence against Accused No.3: To commence with, the FIR states
    that A-3 hit the deceased on the head, thereby causing death. The
    Chargesheet states that A3 used a stone to do the same. However,
    no further details have been provided. Further as we examine the
    testimonies of all the eyewitnesses the following picture emerges.
    PWs 1, 3, 4 and 6 state that the A-3 had used a stone to hit the
    deceased’s head. PW-7 and PW-8 do not speak about his role.
19. PW-1, in his examination-in-chief and cross-examination, has
    respectively stated as follows:
           Chief - “When I was trying to go near the deceased, A-3
           threatened me saying that if I go there he would kill me.
           A-3 hit the deceased with a stone.”
           Cross - “I read Ex. P-1 complaint and it does not show
           that A-1 and A-3 threatened me and other eye witnesses
           to kill if we tried to rescue the deceased”
20. PW-3, in his examination-in-chief and cross-examination, has
    respectively stated as follows:
           Chief - “After hearing the cries of the said Rajitha and
           Swamy I, PW1, Kona Mallesh Akireeddy Ramesh, T.Odaiah
           rushed to the spot. By the time we reached the spot the
           deceased was lying on ground with injuries and on seeing
           us A-3 took a stone and gave threats to us saying that he
           would hit us if we go there.”
           Cross - “It is not true to say that I did not state before the
           police that when land other eye witnesses were going
           near· the place of the incident A-3 armed with a stone
           threatened to kill us. It is not true to say that for the first
           time before this court I am deposing that A-3 armed with
           a stone threatened me and other witnesses to kill”
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21. P.W. 4, in his examination-in-chief, has stated as follows:
          “A-3 took a stone and hit on the head of the deceased.”
22. P.W. 6, in his examination-in-chief, has stated as follows:
          “A-3 took a stone and hit on the head of the deceased.”
23. A reading of the judgment and order passed by the Trial as well as
    the High Court would indicate that neither the prosecution or defence,
    nor the court, have focussed on the role of A-3 as evidenced by
    the oral and documentary evidence. There is nothing to attribute
    A-3 with the intent to murder the deceased. In fact, both the Courts
    have mechanically drawn an inference against A-3 under Section 34
    of the Act merely based on his presence near the scene of offence
    and his familial relations with the other accused.
24. As per the post-mortem report, the cause of death is “cardio
    pulmonary arrest due to transaction spinal cord at atlanto occipital
    joint”. The atlanto occipital joint is at the back of the neck, which is
    the exact place where A-1 assaulted the deceased with the help of
    an axe. This axe was then taken by A-2 and thereafter, by A-4, who
    also assaulted the deceased. All the eye-witnesses are clear in this
    account. In other words, it was only A-3 who never took the axe in
    his hand. He only used a stone to assault the deceased.
25. Considering the statements of the eye-witnesses, coupled with the
    post-mortem report, it is not possible to contend that A-3 would have
    had the intention to commit the murder of the deceased and as such,
    he cannot be convicted under Section 302 IPC.
26. In fact, Victor Dinesh (PW-11), who gave the post-mortem report
    had indicated the injuries as under:
          “1.   Incised wound extending from right ear to left cheek
                19 cm long 6 cm deep 2 mm wide grievous sharp
                weapon, Ante mortem.
          2.    Incised wound on the right eye brow (4cms) simple
                sharp weapon Ante mortem.
          3.    Incised wound on the left side of fore head about
                9 cms above left eye brow measuring 8 cms sharp
                weapon Ante mortem.
[2024] 2 S.C.R.                                                           9

                   Velthepu Srinivas and Others v.
      State of Andhra Pradesh (Now State of Telangana) and Anr.

           4.   Incised wound on left shoulder measuring 4 cm long
                3mm wide. Sharp weapon ante mortem.
           5.   Incised wound on right should of 8 cm long 1 ½ cm
                wide sharp weapon, ante mortem.
           6.   5 cm x 6 Incised wound (slice) on the vertex. Sharp
                weapon ante mortem.
           7.   8 cms long incised wound backs of left wrist, sharp
                weapon ante mortem.
           8.   12 cms incised wound on the front of left hand, sharp
                weapon, ante mortem.
           9.   Partial amputation of middle 3 fingers of left hand,
                ante mortem.
           10. Partial amputation of right thumb. Measuring 2 cms
               sharp weapon ante mortem.
           11. Partial amputation of right index finger measuring 3
               cms sharp weapon, ante mortem.
           12. Deep lacerated wound on the back of neck measuring
               18 cms 7 cms with complete transaction of spinal
               card and Atlanta occipital joint. Blunt weapon, ante
               mortem.”
27. It is evident from the evidence of PW-11 that the deceased suffered
    12 injuries, of which 10 are caused by sharp-edged weapons. The
    11th injury is a partial amputation of the middle 3 fingers of left hand.
    The final injury is a lacerated wound on the back of neck measuring
    18 cms x 7 cms with complete transaction of spinal cord and atlanto
    occipital joint. The Trial Court and the High Court have not analysed
    the evidence as against A-3. They have proceeded to convict him
    along with others under Section 302 with the aid of Section 34. The
    cumulative circumstances in which A-3 was seen participating in
    the crime would clearly indicate that he had no intention to commit
    murder of the deceased for two clear reasons. Firstly, while every
    other accused took the axe used by A1 initially and contributed to the
    assault with this weapon, A-3 did not wield the axe at any point of
    time. Secondly, A-3 only had a stone in his hand, and in fact, some
    of the witnesses said that he merely threatened in case they seek
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       to intervene and prevent the assault. Under these circumstances,
       we hold that A-3 did not share a common intention to commit the
       murder of the deceased. Additionally, there is no evidence that A-3
       came along with the other accused evidencing a common intention.
       The description of the incident is that when the deceased came to
       the scene of occurrence, A-1 dragged him to the house of A-4, and
       the other accused joined A-1. In this context, A-3 picked up a stone
       to assault the deceased.
28. Even though, A-3 might not have had the common intention to
    commit the murder, nevertheless, his participation in the assault
    and the wielding of the stone certainly makes him culpable for the
    offence that he has committed. While we acquit A-3 of the offence
    under Section 302 read with Section 34 of the IPC, he is liable for
    the offence under 304 Part II IPC. The law on Section 304 Part II
    has been succinctly laid down in Camilo Vaz v. State of Goa, (2000)
    9 SCC 1, where it was held that:
               14. This section is in two parts. If analysed, the section
               provides for two kinds of punishment to two different
               situations: (1) if the act by which death is caused is
               done with the intention of causing death or causing such
               bodily injury as is likely to cause death. Here the important
               ingredient is the “intention”; (2) if the act is done with the
               knowledge that it is likely to cause death but without any
               intention to cause death or such bodily injury as is likely
               to cause death. When a person hits another with a danda
               on a vital part of the body with such force that the person
               hit meets his death, knowledge has to be imputed to the
               accused….
29. In the past, this Court has considered factors such as lack of medical
    evidence to prove whether the act/injury was individually sufficient
    to cause death1, a single blow on head with a hammer2 and lack
    of cogent evidence of the eye-witnesses that the accused shared a
    common intention to commit murder3 as some factors to commute
    a sentence from Section 302 to Section 304 Part II IPC.


1     Bawa Singh v. State of Punjab, 1993 Supp (2) SCC 754.
2     Sarup Singh v. State of Haryana, (2009) 16 SCC 479.
3     Ghana Pradhan & Ors. v. State of Orissa, 1991 Supp (2) SCC 451.
[2024] 2 S.C.R.                                                              11

                   Velthepu Srinivas and Others v.
      State of Andhra Pradesh (Now State of Telangana) and Anr.

30. Returning back to the facts of the case, there is certainly no escape
    from coming to the conclusion that A-3 should have had the knowledge
    that the use of a stone to hit the head of the deceased is likely to cause
    death. However, as demonstrated before, the evidence is insufficient
    to deduce a conclusion that he shared a common intention with the
    other accused to commit the murder of the deceased. Considering
    the role that A-3 has played, we hold him guilty of the offence under
    Section 304 Part II IPC.
31. The perusal of the evidence would reveal that it is not the case of
    the prosecution that A-3 was along with the other accused while the
    deceased was dragged to the house. The deposition would reveal
    that after the other accused assaulted the deceased with sword, A-3
    came thereafter and assaulted the deceased with stone lying there.
    We, therefore, find that the prosecution has not been in a position
    to establish that A-3 shared the common intention with the other
    accused to cause the murder of the deceased.
32. For the reasons stated above, we uphold the conviction and sentence
    of A-1, A-2 and A-4 under Section 302 read with Section 34 IPC and
    dismiss their Criminal Appeal No. 2852 of 2023 against the judgment
    of the High Court of Telangana in Criminal Appeal No. 308 of 2005
    dated 26.04.2022. We acquit A-3 of the conviction and sentence
    under Section 302 read with Section 34 and convict him under
    Section 304 Part II and sentence him to undergo imprisonment for
    10 years. To this extent, the appeal of A-3 is allowed by altering the
    conviction under Section 302 to Section 304 Part II IPC.
33. Pending applications, if any, are disposed of.


     Headnotes prepared by: Nidhi Jain   Result of the case: Appeal disposed of.