THE HON’BLE SRI JUSTICE B.N.RAO NALLA CRIMINAL REVISION CASE No.858 of 2006 ORDER: This criminal revision case is filed by the defacto complainant against the acquittal of Accused No.1 for the offence punishable under Section 307 IPC and Accused No.2 for the offences under Sections 307 r/w 34 IPC and 452 r/w 34 IPC vide Judgment dated 25.01.2006 in S.C.No.102 of 2005 on the file of the court of Additional Metropolitan Sessions Judge for the trial of communal offence cases-cum- VII Additional Metropolitan Sessions Judge, at Red Hills, Nampally, Hyderabad. 2. The case of the prosecution, in brief, is as follows: During the intervening night of 27/28-3-2004 in the early hours, A2-Smt.Nahed Begum allowed A1-Mazhar Baig to enter her bed room by opening the door and A1 sat by the side of Cooler waiting for the opportunity to attack PW.1-Mohd.Ali to eliminate him. At about 4.30 am, PW.1 woke up, noticed his wife-A2 also woke up. He found A1 concealing his presence beside the cooler. A1, all of a sudden, pounced on PW.1 and caused severe bleeding injuries on his head and body with an iron pipe by beating him indiscriminately with an intent to do away with his life. That both the accused have committed offences punishable under Sections 452, 307 read with 34 IPC. 3. The court below after taking into consideration the material placed before it and after hearing both sides, framed charges under Sections 452,325,307 IPC against A1 and under Sections 452 read with 34 IPC and 307 read with 34 IPC against A2. 4. On behalf of the prosecution, PWs 1 to 12 were examined and Exs.P.1 to P.13 were marked besides marking M.Os.1 to 3. No witnesses were examined on behalf of the defence except Ex.D.1 a portion of statement of PW.6, in his cross-examination. 5. The court below after taking into consideration the evidence placed on record and the facts and circumstances of the case, found Accused No.1 guilty for the offences punishable under Sections 325 IPC and 448 IPC while acquitting him for the offences under Section 307 and Section 452 IPC. A2 was acquitted for the offences under Sections 452 read with 34 IPC and 307 read with 34 IPC. Thus, A1 was convicted for the offence under Section 325 IPC and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.5,000/-, in default, simple imprisonment for a period of six months. On realisation of fine amount of Rs.5,000/-, a sum of Rs.2,000/- is ordered to be paid to PW.1 by way of compensation after expiry of period of appeal. Further A1 was convicted and sentenced to undergo rigorous imprisonment for a period of six months for the offence punishable under Section 448 IPC. Both the sentences are ordered to run concurrently. Challenging the acquittal of Accused No.1 for the offence punishable under Section 307 IPC and Accused No.2 for the offences punishable under Sections 307 r/w 34 IPC and 452 r/w 34 IPC, the present criminal revision petition is preferred. 6. The learned counsel for the revision petitioner contended that the court below ought not to have acquitted A1 for the offence under Section 307 IPC and A.2 for the offences under Sections 307 r/w 34 IPC and 452 r/w 34 IPC in view of the cogent evidence available on record; that court below ought to have considered the circumstantial evidence as well as the common intention of the accused and that the court below failed to appreciate the evidence with regard to extra judicial confession. 7. The evidence of PW.1 is that he was working as an Accountant in Max Super Market, Saudi Arabia. That A2 is his wife. That she used to reside at H.No.17.3.380/6, Imliban, Yakutpura, Hyderabad along with her children and her mother-in-law-Tajunnisa Begum. That A1 is their neighbour. That on 15.3.2004, PW.1 who was at Saudi Arabia, received fax and telephone messages from his sister-Mehmooda Begum and her husband Vikar Hussain Javid stating that his mother Tajunnisa died. PW.1 then returned to Hyderabad on 16.3.2004 and performed last rites of his mother. That on 27.3.2004 at about 6.00 p.m., PW.1 went to the house of his friend by name Md. Ahmed. That at about 12.30 a.m. (mid night), he returned back to his house and slept in his room along with his wife-A2 and children. That before going to bed, PW.1 bolted the two doors of his room. That at about 4.10 a.m., PW.1 woke up and saw his wife A-2 also woke up at that time. Then PW.1 asked his wife as to why she woke up. His wife then told him that she got a bad dream and therefore, she woke up. PW.1 then advised her to read verses of Quran. That at about 4.15 am, again PW.1 woke up and observed that his wife again woke up. He again asked her and she stated again that she got bad dream. That while he was going toilet, PW.1 saw a person behind the cooler. The said person covered his face below the eyes with scarf. That he raised cries “Chor, Chor”. That person was holding an iron pipe in his hand and beat PW.1 with it on his head at three places and on the back side of his body causing injuries. That he caught hold him and removed scarf. Then PW.1 found that the said person is Mazhar Baig-A1. That PW.1 then asked his wife to open the door. A1 again beat PW1 on his back. That on hearing the cries of PW.1, his sister Smt. Zeenath Begum-PW2 entered the room along with her sons Md. Saleemuddin-PW.3 and Syed Samiuddin. That PW.4 Liyaqath Hussain who was also present in the house rushed to the room of PW.1. That after beating PW.1 for the third time on his head, A1 ran away with the pipe. Then A2 and PW.2 Zeenath Begum took PW.1 to New Life Hospital, Chaderghat for treatment. After admitting PW.1 in the hospital, A2 left the hospital. Then Police visited New Life Hospital and recorded the statement of PW.1 (Ex.P.1). That on 31.3.2004 during midnight PW.1 telephoned A2 and asked her to come to New Life Hospital and A2 visited the New Life Hospital. PW.1 then asked A2 to who has removed the bolt of the door. A2 then told PW.1 that she herself opened the door and there was a plan to attack him. That A2 further told him that she has got illicit intimacy with A1 since last 3 years. That PW.1 asked A2 as to who killed his mother. That A2 told PW.1 that A1 came to the house on 15.3.2004 and he stayed whole night in the room up to 4.00 a.m. and that on seeing his mother, A1 pressed her neck and killed her. That PW.1 then asked A2 as to why she did not reveal the said fact earlier. A2 told him that because A1 threatened her that he would kill her children. 8. The evidence of PW.7 is that PW.1 sustained depressed fracture of left temporal bone and that said injury is grievous injury. That Ex.P.2 is the wound certificate of PW.1. Ex.P.3 is the discharge card. Evidence of PW.1 goes to show that A1 voluntarily caused grievous hurt by using iron pipe-M.O.1. Further, the evidence of PW.1 is corroborated by PWs 2 to 6. Thus, an offence under Section 325 IPC is established. 9. As far as commission of the offence by A1 under Section 307 IPC is concerned, the evidence of PW.1 reveals that when he woke up, he found A1 hiding behind the Cooler. Then PW.1 raised cries “Chor Chor”. It is then that A1 attacked PW.1 with an iron pipe. However, there is no evidence to show that A1 carried iron pipe with him while trespassing into the house of PW.1. The prosecution has not proved that A1 attacked PW.1 with M.O.1 with an intention of causing hurt or with intention of causing such bodily injury that A1 knew it likely to cause death or was sufficient in the ordinary course of nature to cause death. Therefore, offence under Section 307 IPC is not proved. 10. So far as the charge under Section 452 IPC is concerned, it is seen that A1 has committed criminal trespass by entering the house of PW.1, but, there is no evidence on record to show the purpose for which A1 entered the house of PW.1. To constitute an offence under Section 452 IPC, it has to be proved that the dominant intent of the accused was to cause hurt or to assault any person. Therefore, the court below has rightly convicted A1 under Section 448 IPC. 11. It is the case of the prosecution that A2 (wife of PW.1) developed illicit intimacy with A1 and A1 used to visit the house of A2 since her husband PW.1 was working in Saudi Arabia. That after return of PW.1 to Hyderabad on 16.3.2004, A1 and A2 hatched a plan to kill PW.1 and in pursuance of the said plan, A1 with the help of A2 gained entry into the bed room of PW.1. That A1 in furtherance of common intention attacked PW.1 with an intention to kill him. Therefore, A2 is also guilty of the offences since A1 attacked PW.1 in furtherance of common intention of both the accused. 12. It is seen that prosecution relied on extra judicial confession of A2 before PW.1 on 31.3.2004 and her conduct on the date of incident. The version of PW.1 is that on 31.3.2004, A2 told him that she opened the door and there was a plan to attack him and she also told him that she got illicit intimacy with A1 since last three years. PW.5, sister of PW.1, deposed that A2 told her that since 2 to 3 years A1 is harassing her and that he used to visit her house during night time and he killed her mother-in-law and she hatched a plan to kill PW.1 so as to marry A1. PW.6, who is related to PW.1, deposed that A2 informed him that A1 used to visit their house and she got relationship with A1 since last 3 years and one day her mother-in-law had seen A1 in her room and that A1 caught hold of the neck of her mother- in- law and pushed her towards wall and A2 also stated that A1 planned to kill PW.1. 13. From the above, it is clear that there is variation in their evidence regarding extra judicial confession alleged to have been made by A2. The cross-examination of PW.1 goes to show that he did not mention in the complaint dated 02.04.2004 about A2 planning to kill him along with A.1. PW.1 has not stated in his complaint dated 02.04.2004 about confessional statement of A2. Further, the evidence of PWs 5 and 6 is not cogent and convincing to bring home the guilt of A2 that she is connected with the commission of offence. PW.1 did not state in his evidence that his wife-A2 did not open the door of the room though he asked her to open it, at the time of incident. A2 was not examined by the Investigation Officer. FIR was issued against A1 only. In the facts and circumstances of the case, it cannot be said that there was pre-arranged plan or meeting of minds of both the accused before commission of the crime. 14. Therefore, having regard to the evidence brought on record by the prosecution, facts and circumstances of the case and in view of the above discussion, this court is of the considered opinion that the trial court has not committed any error in acquitting Accused No.1 for the offence punishable under Section 307 IPC and Accused No.2 for the offences under Sections 307 r/w 34 IPC and 452 r/w 34 IPC. 15. Hence, the Criminal Revision Petition fails and the same is dismissed. ______________ NALLA, J -06-2010 Stp