THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU Crl.A.No. 352/2007 Dt.14-7-2010 1. Mohd. Naseer @ Munna and another ..Appellants/A-1 & A-2 V. The State of Andhra Pradesh, represented by its Public Prosecutor, High Court of A.P., at Hyderabad. ..Respondent/complainant The Court made the following: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU Crl.A.No. 352/2007 JUDGMENT (per the Honourable Justice A.GOPAL REDDY) The appellants who figured as A-1 and A-2 were put to trial for the offence under Section 302 r/w 34 IPC in SC No.376/2005 by the II Additional Metropolitan Sessions Judge, Hyderabad. The learned Sessions Judge found A-1 and A-2 guilty for the offence under Section 302 r/w 34 IPC and convicted them accordingly and sentenced to suffer imprisonment for life and also to pay a fine of Rs.500/-, in default to suffer simple imprisonment for a period of two months. The substance of the charge against the accused is that the accused on 5th day of January, 2005 at about 5 PM in front of the house of Mohd. Yousuf (hereinafter referred to as “the deceased) situated at New Hakeempet, Banjara Hills, Hyderabad, in furtherance of common intention, commit the murder of the deceased. The prosecution story, as unfolded during the trial, which led to the conviction of the appellant/accused, is as follows: A-1 and A-2 are the paternal cousins of the deceased. The house of the deceased is situated adjacent to the house of the accused in New Hakeempet, Banjara Hills, Hyderabad. There were frequent quarrels between the mothers of the accused and deceased over petty matters and the deceased used to interfere in their quarrels which A-1 did not like. A-1 warned the deceased not to interfere in the quarrel of their ladies, which enraged the deceased. About four months back, the deceased along with his brother Rafi and another attempted to attack A-1, but the elders of the locality pacified the matter. A-1 bore a grudge against the deceased decided to do away and was waiting for a chance. On 5-1-2005 at about 5 PM there was a quarrel between Master Salam, younger brother of the deceased and A-1’s maternal aunt’s son Majid @ Goti while playing marbles in front of the house of the deceased. The deceased chastised them and sent out from that place. Having come to know about the interference of the deceased, A-1 took it as an advantage, went to the house of the deceased along with his younger brother, A-2, armed with a steel angular and water tap pipe, called the deceased abusing him in filthy language and challenged him. When the deceased came out of the house, A-1 and A-2 caught hold of him, dragged him on the road and pushed him violently. As the deceased fell down on a big cement manhole cover, A-1 attacked and caused injury on the chest of the deceased with steel angular, while A-2 attacked and caused injuries on the chin and thigh with iron water tap pipe and escaped. While shifting to the hospital in an auto rickshaw, the deceased succumbed to his injuries. The father of the deceased lodged a report with P.W.10. P.W.10, the then Sub-Inspector of Police, Banjara Hills Police Station on receiving a telephonic message that a murder had taken place in New Hakeempet, proceeded to New Hakeempet and noticed blood stains on the drainage cover in front of the house of the deceased and found the dead body in the house of P.W.1. After recording the statement of the father of the deceased, P.W.1, he registered a case in Cr.No.13/2005 under Section 302 r/w 34 IPC and issued First Information Report covered under Ex.P-11 and shifted the dead body to the Osmania General Hospital mortuary. P.W.11, who took up investigation from P.W.10, visited the scene of offence and examined P.Ws.2 and 3 and recorded their statements. Thereafter, he visited Osmania General Hospital, where he examined P.Ws.1, 4 and Ghousia Begum. On the next day, he visited the scene and prepared observation of scene of offence in the presence of P.W.5 and another. He prepared rough sketch. He got photographed the scene. He conducted inquest over the dead body of the deceased in the presence of PW.6 and another. During the inquest, he seized blood stained clothes-M.Os.3 to 6 under a cover of seizure panchanama covered under Ex.P-13. After conducting inquest, he sent the dead body for post-mortem examination. P.W.9, who is working as Tutor in Forensic Department in Osmania General Medical College, Hyderabad conducted post-mortem examination over the dead body and found ante mortem injuries and issued post-mortem report covered under Ex.P-10 opining that the deceased died due to stab injury over the chest. P.W.12, who took up further investigation from P.W.11, deposed that on 11-1-2005 Sub-Inspector arrested A-1 and A-2 and produced them before him. He recorded the confessional statements of the accused separately. Pursuant to the confessional statements, he seized steel angular at the instance of A-1 and seized iron pipe at the instance of A-2. He sent all the material objects to the Forensic Science Laboratory. After receiving the relevant documents and on completion of investigation, P.W.12 filed the charge sheet before the III Additional Chief Metropolitan Magistrate, Hyderabad. Learned Magistrate took the charge-sheet on file as PRC No.28/2005 and committed the case to the Metropolitan Sessions Division of Hyderabad District as the offence is exclusively triable by Court of Sessions. The learned Metropolitan Sessions Judge took the case on file as SC No.376/2005 and made over to the II Additional Metropolitan Sessions Judge, Hyderabad for disposal according to law. The learned Metropolitan Sessions Judge on hearing the prosecution and the accused, framed a single charge for the offence punishable under Section 302 r/w 34 IPC against the accused, read over and explained the same to the accused in Telugu, for which the accused pleaded not guilty and claimed to be tried. To bring home the guilt of the accused for the offences for which the stood charged, the prosecution examined 12 witnesses and proved 15 documents and exhibited 6 material objects. Ex.X-1 was marked through witnesses. After closure of prosecution side evidence, the accused were examined under Sec. 313 Cr.P.C., and they denied the incriminating material appearing against them in the evidence of prosecution witnesses, and represented that there is no evidence to be adduced on their behalf. The learned Sessions Judge after considering the evidence adduced by the prosecution, found A-1 and A-2 guilty for the offence punishable under Section 302 r/w 34 IPC and convicted them accordingly and sentenced each of them, as aforementioned. Challenging the conviction and sentence, A-1 and A-2 preferred the present appeal. Sri G. Sanjay Kumar, learned counsel for the appellants/accused contended that it is not possible to inflict injury No.5 with M.O.1; that P.W.1 and 4 who are father and mother of the deceased are interested witnesses and their evidence cannot be looked into; that there is no possibility for P.W.3 to witness the incident as her house is situated far away from the scene of offence; and that though P.W.1 speaks that A-1 and A-2 beat the deceased with iron pipe and angular respectively, no corresponding injuries are found by the Doctor on the body of the deceased. He further contended that that even if the prosecution is able to establish that the accused inflicted injuries on the body of the deceased, there was no motive to cause death and there was no intention to kill the deceased, therefore the accused cannot be convicted for the offence of murder but they may be convicted under Sec. 304 Part II IPC. On the other hand, the learned Additional Public Prosecutor contended that the evidence of P.Ws.1 to 4 is consistent with regard to attack on the deceased by A-1 and A-2; that P.W.9 who conducted autopsy over the dead body of the deceased clearly stated that injury No.5 is possible with M.O.2; that in the absence of any enmity between the deceased and the accused, false implication of the accused does not arise; that the trial court, upon proper appreciation of the evidence on record, rightly convicted and sentenced the appellant and there are no grounds to set-aside the conviction and sentence recorded by the trial court and hence he prays to dismiss the appeal. In the light of the rival submissions, the point that arises for consideration in this appeal is: “Whether the prosecution has proved the guilt of the appellant/accused beyond reasonable doubt and whether the conviction and sentence imposed on the appellant/accused for the offence punishable under Sec. 302 r/w 34 IPC are liable to be set-aside or modified? P.W.1, who is the father of the deceased, stated that A-1 and A-2 are residing along with their mother Khaja Bee in the house situated adjacent to his house. P.W.3 is residing in a house, situated in the back side of his house. Whereas P.W.2 is residing in a house which is opposite to his house. On 5-1-2005, when there was a quarrel between Khaja Bee’s sister’s son and his youngest son, the deceased separated them and came to his house. Thereafter, Khaja Bee’s sister’s son went and brought his mother to his house. At that time, A-1 and A-2 also came to his house and abused the deceased and questioned him as to why he is hiding in the house like a woman. Then, the deceased went out of the house and was standing at the entrance door of the house. At that time, A-2 beat the deceased with an iron pipe. When the deceased fell down on the ground, A-1 attacked the deceased with an angular on his chest. A-1 and A-2 ran away from that place. His wife, P.W.4, and Ghousia Bee (not examined) took the deceased in an auto rickshaw to go to hospital and on the way the deceased died and they returned to his house with the deceased. At about 8 PM, on the same day, police came and recorded his statement. Ex.P-1 is the statement recorded by P.W.10. In the cross-examination, he stated that at Hakeempet, himself and the family members of A-1 and A-2 purchased one house and they were not having any quarrels between them and the family of A-1 and A-2. He denied a suggestion that A-1 did not beat the deceased on his chest with angular, the said injury caused to the deceased son while he fell on the newly constructed stair case on the shop room in front of his house. P.W.2, who is neighbour, deposed that on 5-1-2005 at about 5 PM on hearing sounds and cries in front of his house, he came out of the house and noticed A-2 beating the deceased with an iron pipe on his head. He also noticed A-1 attacking the deceased with sharp angular on his chest. The deceased fell down on the cover of the manhole of the drainage. A-1 and A-2 ran away from that place. P.W.3 deposed that on coming to know that the mother of the accused and the mother of the deceased were quarrelling, he came out of her house and noticed A-1 and A-2 present there. When the deceased came out of the house, A-2 beat the deceased with an iron pipe on the back of his head and he fell down in the cover of drainage. When she tried to catch hold of A-2 from preventing him for beating the deceased, A-1 beat the deceased with angular, then the deceased fell down. In the cross-examination, she stated that the incident occurred at about 5 or 5-30 PM. The house of her sister is opposite to the house of P.W.1. At that time, none were present in front of the house of P.W.1. P.W.1 and his wife, P.W.4, were in side their house. She volunteers that she came out of her house on hearing the cries. P.W.4, who is the mother of the deceased, while corroborating the evidence of P.W.1 in all material particulars, further stated that when the deceased came out of the house, A-2 beat him with an iron rod on his head and when the deceased fell down, A-1 beat him with angular on his chest. Then, herself and Ghousia Begum shifted the deceased in an auto to proceed to hospital and on the way the deceased died and they returned back to their house. On that day, at 7 PM police came to her house. Police recorded her statement at the hospital. In the cross-examination, she deposed that there was a quarrel between A-1 and A-2 and the deceased on the date of incident. Nothing was elicited in the cross-examination to disbelieve the testimony of PWs.1 to 4. P.Ws.5 is the panch witnesses to the scene of observation panchanama and rough sketch. P.W.6 is the witness to the inquest conducted over the dead body of the deceased. P.Ws.7 and 8 did not support the case of the prosecution, and they were turned hostile. P.W.9 who conducted post-mortem examination found the following injuries: 1. Abrasion 3 x ½ cms vertical on right mid lower jaw. 2. Abrasion 3 x ½ cms transverse 5 cms above right knee. 3. Abrasion ½ x ½ cm over bridge of nose. 4. Contusion of scalp 3 x 2 cms left side of forehead 4 cms above medial half of left eyebrow. 5. Stab injury 3 x 1 cm transverse both angles acute margin, clean cut, upper margin beveled 12 cms below medial end of right cavity 6 cms inner to right nipple entered the trachea cavity between 4th and 5th ribs cutting across the right border of sternum from front to back slightly above downward from right to left pierced the pericardia at lower region and pierces right ventricle of heart at apex about 50 ml of blood in pericardia sac and about 1 litre blood in pericardia cavity. He issued postmortem certificate covered under Ex.P-10 opining that the deceased died due to stab injury over the chest. He further stated that injury No.5 is possible with M.O.2 and injury Nos.1 to 4 are possible with M.O.1. As per FSL report dt. 23-2-2005, blood is detected on steel angular with dark brown stains, which was marked as item No.5, and origin of blood stains on item Nos.1 to 3 and 5 is of human. The motive for commission of the offence as set up by the prosecution is due to quarrel that took place in between the family of the deceased and the family of A-1 and A-2 prior to the incident. On 5-1-2005 when there was a quarrel between Khaja Bee’s sister’s son and the son of P.W.1, the deceased separated them, and thereafter Khaja Bee’s sister’s son went and brought his mother to the house of P.W.1 and the deceased. At that time A-1 and A-2 came there, A-2 beat the deceased with an iron pipe and when he fell on the ground, A-1 attacked the deceased with an angular on his chest. As per the prosecution evidence, the offence took place at about 5 or 5-30 PM in front of the house of P.W.1. From the evidence of P.Ws.2 and 3, it is clear that immediately after the occurrence, P.W.4 and another took the deceased to the hospital and P.W.1 remained at his house. P.W.10 on coming to know that a murder had taken place in Hakeempet rushed to the scene and recorded the statement of P.W.1, and shifted the dead body to the mortuary and registered the crime. In Ex.P-1, P.W.1 categorically stated about the incident, which has happened in front of his house. He also mentioned the name of P.W.3 who is said to have seen the incident and who is trying to rescue the deceased from further beating by the accused. The evidence of P.W.1 is fully corroborated by the evidence of P.W.3, who on hearing the cries in front of her house came out of her house and noticed A-2 beating the deceased with an iron pipe on the back of his head and further noticed A-1 beating the deceased with an angular and when the deceased fell down on the cover of drainage, A-1 and A-2 ran away from the scene. P.W.2 who is a neighbour to P.W.1 also speaks about participation of A-1 and A-2 in the crime. The evidence of P.Ws.1 to 3 has been supported by the evidence of Doctor who conducted post-mortem examination. Therefore, the prosecution is able to establish that the deceased died due to the injuries caused by the accused. Now, it is to be seen whether the appellants had intended to cause death of the deceased or knowledge that their acts would likely to cause death. According to the prosecution, when the deceased came out of his house and was standing at the entrance door of his house, A-2 beat the deceased with an iron pipe. Post-mortem certificate and the evidence of Doctor-P.W.9 show that fifth injury is a stab injury and it is possible with M.O.2- angular, and cause of death was due to stab injury over the chest. So, it was only injury No.5 which was fatal in nature. The evidence of P.Ws.1 to 4 is very clear and consistent that A-1 beat the deceased with a steel angular on his chest and A-2 beat the deceased on his head. A-1 and A-2 came to the house of P.W.1 along with Khaja Bee, at that time A-1 and A-2 questioned the deceased why he is hiding inside the house and when he came out of the house, there occurred a quarrel. Initially, the appellants/accused did not have any weapons with them and during the course of incident they took the weapons and beat the deceased. If an act is committed without any premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender being taken undue advantage of the situation or acted in a cruel or unusual manner, then the case squarely falls under the exception-4 of Section 300 IPC. Therefore, the appellant No.1/A-1 is liable to be convicted under Sec. 304 Part-II IPC. It is trite law that Section 304 Part II IPC comes into play when the death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death. The injury Nos.1 to 4 are found on the head and backside of the head, eye brow. P.Ws.1 to 4 deposed that A-2 beat the deceased on his head with an iron pipe. P.W.9 deposed that injury Nos.1 to 4 are possible with M.O.1. In view of causing injuries to the deceased, A-2 cannot be convicted for the offence of murder but he can be convicted for voluntarily causing hurt to the deceased. Therefore, the appellant No.2/A2 is liable to be convicted under Sec. 324 IPC. For the aforesaid reasons, the conviction and sentence of imprisonment for life recorded against the appellants/A-1 and A-2 for the offence punishable under Section 302 r/w 34 IPC, in SC No.376/2005 by the II Additional Metropolitan Sessions Judge, Hyderabad dt, 21-12-2006, are set-aside. Sentence of fine shall remain unaltered. In stead, the appellant No.1/A-1 is found guilty for the offence under Section 304 Part II IPC, and convicted him accordingly and sentenced him to undergo rigorous imprisonment for a period of five (5) years, and the appellant No.2/A-2 is found guilty for the offence under Section 324 IPC, and convicted him accordingly and sentenced him to undergo rigorous imprisonment for a period of three (3) years. The period of detention during investigation, trial and after conviction shall be given set off under Section 428 Cr.P.C. The Criminal Appeal is partly allowed. --------------------- A.GOPAL REDDY,J --------------- K.C.BHANU,J DT. 14-7-2010 Kmr