IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRL.A.NO.2253 OF 2004 Date:04-03-2011 Between:- Shaik Nayeem ..Appellant/Accused And The State of A.P., rep. by its Public Prosecutor, High Court of Andhra Pradesh, Hyderabad. .. Respondent/Complainant JUDGMENT:- This is an appeal arising out of the conviction and sentence passed by the Principal District and Sessions Judge, Ranga Reddy District in Sessions Case No.120 of 2004 on 08-10-2004. 2. The accused is prosecuted for an offence punishable under Section 302 of Indian Penal Code, 1860 (for short, ‘I.P.C.’) alleging that the accused along with his wife Faimada was residing in a house bearing Door No.7-145, Ambedkar Nagar, Jillelaguda, and on 2/3-4- 2003, at 00.15 hours, the accused gone to his landlord Gaddam Srinivas and informed him that he had an altercation with his wife Faimada in which he beat her as a result, she became unconscious. Then, the said Srinivas and others gone to the house of the accused and found his wife Faimada in unconscious state. She was first taken to Rohith Hospital, L.B.Nagar and later to Medicare Hospital, L.B.Nagar. Since there was no doctor to attend her, she was finally taken to Osmania General Hospital, Hyderabad at 02.45 hours where she was declared dead. On the complaint given by G.Srinivas, a case in Crime No.191 of 2003 under Section 302 I.P.C. was registered by P.W.10 and investigation was handed over to P.W.11. During the course of investigation, P.W.11 has conducted scene of offence panchanama and thereafter, held the inquest over the dead body of the deceased and the blood stained clothes of the deceased were seized. The photographs of the deceased were taken with the help of photographer. The dead body was sent for post mortem examination and the doctor-P.W.6, who has conducted the post mortem, has opined that the deceased died due to head injury. The accused was arrested on 4-4-2003 and the investigation disclosed that the deceased Prameela belongs to Hindu community. She was first married to one Raheem of Chaderghat and at that time, she changed her name as Faimada and she has four children out of said marital life. She deserted her husband Raheem four years prior to the incident and thereafter, came into contact with the accused about four months prior to the incident and both of them married at a mosque at Madannapet and they stayed in the house of P.Ws.3 and 4 for sometime, who are the grandparents of the deceased. Subsequently, they put up their family in the house of P.W.2 at Ambedkarnagar. There were differences between the accused and the deceased as a result, the deceased preferred to leave the house with all her belongings and went to her another house of her grandparents located at Chaderghat. On 01-04-2003, accused went to the house of P.Ws.3 and 4 and picked up a quarrel with the deceased and the deceased insulted him before the residents of the locality. A panchayat was held in the presence of P.Ws.3 and 4 and others and the accused was admonished to look after the deceased properly. The accused and the deceased came back to their house at Ambedkarnagar. On the intervening night of 2/3-04-2003, at about 11.30 p.m., the accused again picked up an altercation with the deceased on the ground that she had insulted him before the elders at Chaderghat and beat her indiscriminately and pushed her as a result of which she fell down on a stone sustaining bleeding injury and later, she was declared as dead in the Osmania General Hospital. Hence, the accused is charged for the offence under Section 302 I.P.C. 3. The learned Sessions Judge had framed charge under Section 302 I.P.C. against the accused and the accused pleaded not guilty for the said charge. 4. The prosecution, in order to establish the charge, examined P.W.1 to 11 and got marked Exs.P-1 to P-15 and M.Os.1 to 4. No witnesses were examined nor documents marked on behalf of the defence. 5. The learned Sessions Judge, after taking into consideration of the said oral and documentary evidence, found the accused guilty for the offence punishable under Section 304 Part-I I.P.C. and convicted and sentenced to undergo Rigorous Imprisonment for a period of ten years and to pay a fine of Rs.100/-, in default, to undergo Simple Imprisonment for four weeks. Aggrieved with the said conviction and sentence, the present appeal is filed. 6. When the matter came up for hearing, there is no representation on behalf of the appellant. Hence, the matter is being disposed of basing on the material available on record. 7. Now the point that arise for consideration is whether the prosecution could able to establish the offence punishable under Section 304 Part-I I.P.C. against the accused beyond all reasonable doubt? 8. As per the grounds of appeal, the prosecution failed to establish the offence punishable under Section 304 Part-I I.P.C. as both P.Ws.1 and 2 turned hostile. There is no evidence to bring home the guilt of the accused and as P.W.4 turned hostile to the prosecution, his evidence cannot be considered and as such, the accused is entitled for benefit of doubt. According to the prosecution, there were disputes between the accused and the deceased and the deceased had insulted the accused at the house of P.Ws.3 and 4 at Chaderghat in the presence of locality people and a panchayat was held and the deceased came along with the accused to the house at Ambedkarnagar and on that day night i.e., on 2/3-04-2003, an altercation took place between the accused and the deceased and the accused beat severely and threw her and she fell down on a stone and sustained head injury and the accused gone to P.W.2 and informed about the incident and on which, he gave a complaint to the police and the police came and took the deceased to Osmania General Hospital where she has been declared as dead. With regard to the disputes between the accused and the deceased, the prosecution has examined P.Ws.3 and 4, who are the grandparents of the deceased. According to P.W.3, the deceased is her daughter’s daughter and her original name was Prameela and earlier, she was married to another muslim person and has got three children. Subsequently, she married the accused six months prior to her death and the accused started living with the deceased. They lived happily for four months. Thereafter, he started harassing the deceased for money. At about 9.30 a.m., the brother of the accused came and told that both the accused and deceased quarrelled with each other and the accused pushed her and she fell down and died. P.W.4, the husband of P.W.3, has also supported the version of P.W.3 with regard to deceased marrying the accused and their living happily in the beginning and thereafter, there were disputes between them and they used to quarrel with each other. 9. The case of the prosecution mainly depends upon the evidence of P.W.2, who is a landlord of the house in which the accused and deceased were residing as on the date of incident at Ambedkarnagar. According to P.W.2, on the date of incident, he saw the wife of the accused. The accused is a tenant in his another house in the same locality. On 2/3-04-2003, on intervening night at about 12 midnight, the accused came to his house and informed that he quarrelled with his wife and his wife fell down and she is unable to get up. He along with his younger brother went to the house of the accused and found the wife of the accused lying on the ground. He sent his brother Jagan to go and give a report in the police station. His brother returned along with one Constable and the accused, Constable and elder brother of the accused took the deceased in auto to Osmania General Hospital. Next day morning, he came to know that the wife of the accused died. Then he went and gave a complaint to the police. Ex.P-2 is the complaint given by him. In the cross examination, he has stated that his brother did not give any written report to the police. He drafted the complaint to the dictation of the police and he do not know the contents of Ex.P-1. Therefore, P.W.2 has turned hostile with regard to his giving a complaint to the police with regard to the incident. But the fact remains that the accused came to his house on 2/3-04-2003 at about 12 mid night and informed him about the quarrel between him and his wife and he has gone to the house of the accused and found the wife of the accused fell down and unable to move about and she was shifted to Osmania General Hospital and on the next day, he came to know about the death of the deceased. Therefore, even though P.W.2 turned hostile, his rebuttable evidence with regard to the occurrence of the incident on 2/3-4-2003 can be relied upon. 10. The Doctor-P.W.6, who conducted autopsy over the dead body of the deceased, found about eleven external injuries on the body of the deceased and he opined that the cause of death is due to head injury and he has stated that that type of injuries can be caused by blunt objects and in the cross examination, he has stated that the above injuries are not possible if a person falls on a stone or on a rough surface. 11. P.W.7-mediator of the seizure of the stone, did not establish the case of the prosecution. But P.W.9-other witness to the scene of offence for the seizure of the stone, has specifically stated about the police conducting observation panchanama of the scene of offence in his presence and seizing M.O.1- stone from the scene of offence and he also has stated that M.O.1 is having blood stains. 12. P.W.10 is the Head Constable who has registered the case on the complaint given by P.W.2 and according to him, he went to the scene of offence and secured the presence of P.Ws.7 and 9 and conducted the scene of offence panchanama and seized stone at the scene of offence. Therefore, from the evidence of P.Ws.9 and 10, it is established that the M.O.1-stone was seized from the scene of offence under a cover of panchanama-Ex.P-22. 13. P.W.8 is the mediator for the inquest report and P.W.11-Investigating Officer held inquest over the dead body of the deceased in the presence of P.W.8 and another. According to P.W.11, he arrested the accused on 04-04-2003 at 6.30 a.m. and remanded him to judicial custody. Therefore, from the evidence of P.Ws.3 and 4, it is evident that there were quarrels between the accused and the deceased and as per the evidence of P.W.2, it is established that the deceased fell unconscious in the house of accused and in the mid night of 2/3-04-2003, she was shifted to Osmania General Hospital where she was declared dead. The doctor-P.W.6 has found eleven injuries on the dead body of the deceased. Except accused, none others were present in the house at the time of incident. Therefore, as rightly observed by the learned Sessions Judge, the accused is responsible for the death of the deceased by causing injuries to her. The prosecution could able to establish the charge under Section 304 Part-I I.P.C. against the accused beyond all reasonable doubt. Hence, the finding of the lower Court does not warrant any interference by this Court. 14. With regard to the quantum of sentence, the learned Sessions Judge has convicted the accused for the offence under Section 304 Part-I I.P.C. and sentenced him to imprisonment for ten years and to pay fine of Rs.100/-. Taking into consideration the facts and circumstances of the case in which the offence has taken place, I hold that imposing sentence of ten years is highly excessive. Hence, the sentence can be reduced to five years by imposing fine of Rs.100/-. 15. In the result, the appeal is partly allowed confirming the conviction recorded against the accused in the judgment dated 08-10- 2004 in Sessions Case No.120 of 2004 on the file of the earned Principal Sessions Judge, Ranga Reddy District at L.B.Nagar, Hyderabad for the offence punishable under Section 304 Part- I I.P.C. and the sentence of Rigorous Imprisonment for ten (10) years is reduced to Rigorous Imprisonment for five (5) years and confirming the imposition of fine of Rs.100/-, and in default of payment of fine, to undergo Simple Imprisonment for four weeks. ______________________ P.DURGA PRASAD, J 4th March, 2011 AMD