HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE P.SWAROOP REDDY CRL.A.NO.87 OF 2008 Dt.22.12.2010 Between: The State of A.P., rep. by the Public Prosecutor, High Court of A.P., Hyderabad. ..Appellant And Mir Haroon Ali Khan ..Respondent HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE P.SWAROOP REDDY CRL.A.NO.87 OF 2008 JUDGMENT: (Per Sri Justice P.Swaroop Reddy) This criminal appeal is filed by the State against the judgment in S.C.No.441 of 2005 on the file of the Metropolitan Sessions Judge, Hyderabad, dated 1.3.2007. The facts of the case, in brief, are as follows: P.W.2 is a girl aged about 12 years, P.W.1 is her mother and the deceased is her grand father. The family was in the habit of sleeping on the footpath of Yakatpura Railway Station and they were beggars. On the intervening night of 15/16.3.2005 while all of them were sleeping on the footpath as usual at about 2.00 a.m., the accused came to their place of sleeping and tried to sleep by the side of P.W.2 with an ill intention. P.W.2 got up and made hue and cry and the deceased who is her grandfather tried to question the behaviour of the accused, who in spite of galata was still insisting to sleep by the side of P.W.2. This led to quarrel between the accused and the deceased. The accused took a wooden pestle from the nearby place and beat the deceased on his forehead with an intention to kill him and caused severe bleeding injury. The injured was shifted to Osmania General Hospital for treatment where he died on the morning of 16.3.2005 at about 2.00 p.m. On the complaint, the case was registered and investigation was taken up and charge sheet was filed under Section 302 IPC. The accused pleaded not guilty. On behalf of the prosecution, P.Ws.1 to 11 were examined and Exhibits P-1 to P-14 and M.Os.1 to 4 were marked. On behalf of the defence, D.W.1 was examined and Exhibits D-1 and D-2 were marked to show that the deceased was conscious while admitting in the hospital and was questioned by D.W.1 and he did not reveal the name of the accused. Considering the material on record, the learned trial Judge acquitted the accused holding that the identity of the accused is not proved and no test identification period was conducted and there are inconsistencies in the evidence of the prosecution witnesses. Aggrieved by the same, the State filed this appeal. The point for consideration is whether the prosecution has proved its case beyond all reasonable doubt. As already referred to above, it is a case where the accused tried to sleep by the side of P.W.2, a begger during night and went on insisting to sleep there itself. On being questioned by the deceased, he beat him with a stick on the head, which caused death of the deceased subsequently in the hospital. The eyewitness to the incident is P.Ws.1 and 2. Though P.W.3 is another eyewitness, he turned hostile. There is circumstantial evidence. P.W.5 is the Medical Officer who stated that the deceased died due to the injuries received by him in the incident. Though there is no dispute about the homicidal death of the deceased, the question is whether the accused caused the death of the deceased. There is absolutely no motive for the prosecution witnesses P.Ws.1 and 2 to falsely implicate the accused in a case of this nature. Sri C.Padmanabha Reddy, learned senior counsel appearing for the accused contends that it is a case where the accused was not known to P.Ws.1 and 2. But, P.W.1 has given the name and address of the accused in Ex.P-1 and it might be with the assistance of the police. It is further contended that there is no test identification parade and as such, the identity of the accused by the prosecution witnesses P.Ws.1 and 2 cannot be accepted and on the basis of such evidence there cannot be any conviction of the accused. On the other hand, the learned Public Prosecutor contends that as per the evidence of P.W.1 sometime prior to the incident the accused asked her for beedi and when she refused, he beat her on stomach. At that time an auto rickshaw driver gave the name and address of the accused. Learned senior counsel contends that it is impossible to believe that something happened two years back and P.W.1 still remembers that. The contention of the learned senior counsel that it may not be possible for the accused a stranger to be identified by seeing only once cannot be sustained. It is a case where the accused who was a vagabond and the prosecution party used to live by begging by moving there in the same vicinity. At the time of earlier incident of the accused beating P.W.1, P.W.1 has come to know the name of the accused revealed by an auto driver and therefore, she might have remembered same and could have furnished his name in the report. In this view of the matter and in view of the fact that the accused and the prosecution party used to live in the same vicinity, it might not have been impossible for P.Ws.1 and 2 in identifying the accused. Except a minor incident of the accused beating P.W.1 earlier, there is no evidence to show that there was any previous enemity between the accused and P.ws.1 and 2 and therefore, we feel that there is no necessity for P.ws.1 and 2 to implicate the accused. Apart from that, it is also not the defence of the accused that on account of the earlier incident, P.W.1 was inimical towards him and therefore, she has foisted a false case against him. The evidence of P.W.1 is clear that night they took supper and slept at Yakatpura Railway Station platform. At about 2.00 a.m., one person came and slept by the side of P.W.2. P.W.2 woke up and raised cries. On hearing her cries, they woke up and the deceased who is the grand father of P.W.2 questioned the accused why he was sleeping by the side of P.W.2. On that the accused took a pestle and beat on the head of the deceased and he sustained bleeding injuries. They took him to Osmania General Hospital where he died on the next day. Though it is suggested to P.W.1 that at the time of admission of the deceased in the hospital the deceased made a statement to the attending doctor to the effect that some unknown person beat and assaulted him, the same was denied by her. D.W.1 is the Medical Officer who examined the deceased at the time of his admission in the hospital. The evidence of D.W.1 is that he is working at Government Chest Hospital at Erragadda and previously he worked as Casualty Medical Officer in Osmania General Hospital from 28.11.2000 to 30.11.2005. On 16.3.2005 at 3.15 a.m., on the requisition from the S.H.O., Rein Bazar Police Station, he examined the injured brought by the Police Constable and found a laceration measuring about 3 x 2 cms over the left eye brow and bleeding from nose. After giving first aid, he referred the injured to D.S.O., Neuro and Orthopedic. The patient was conscious and coherent and he stated that he was beaten by two unknown persons at 2.00 a.m., at Yakutpura Railway Station. Ex.D-2 is the certificate issued by him. But, no statement was recorded from the deceased to that effect. In the absence of any statement from the deceased at the time of treatment and in the light of the evidence of P.W.1, this statement of D.W.1 cannot be accepted because it is not known as to what was the state of mind of the deceased at that time when D.W.1 examined him. We are not inclined to give much weight to the evidence of D.W.1. The evidence of P.W.2 is that at about 2.00 a.m., the accused came and tried to sleep by the side of her, she woke up and raised cries and on hearing the cries, her mother and grand father woke up and questioned the accused as to why he was sleeping by her side. Thereupon, the accused beat the deceased with a pestle on his head causing bleeding injury and the accused ran away. The evidence of P.Ws.1 and 2 goes to show that the accused spent sufficient time at the place where P.Ws.1 and 2 and others were sleeping. Though it was night, there were lights at the Railway Station. As already stated, the accused and the deceased used to live in the same vicinity. Therefore, it can be said that there was acquaintance between the accused and the prosecution party. P.W.5, the Medical Officer, who conducted post mortem examination on the dead body of the deceased, found the following injuries: “1. A sutured wound obliquely placed of length 3 cm with 4 sutures on the left side of the forehead, above lateral end of left eye brow. 2. Multiple small contused abrasions of 4 x 2 cms over the left side of forehead 5 cm above the left eye brow. Reddish blue. 3. A haemorrhagic contusion under the scalp of 12 x 10 x 0.5 cms on the left fronto parieto temporal region. Left temporal muscle contused. 4. A vertically placed fissured fracture of the left temporal bone of length 7 cm extending into the floor of the left middle cranial fossa. 5. Diffuse extradural and subdural haemorrhages all over the brain surface and sub arachenoid haemmorrage on left side of brain.” He opined that the head injury was the cause of death. Injury No.4 is fissured fracture of the left temporal bone. Thus, though there was fracture of skull, there are no other serious injuries. It was a case where suddenly the accused picked up a stick lying nearby and beat the deceased on his head. The accused never had any intention of causing the death of the deceased or knowledge that the blow would cause death of the deceased. Therefore, it can be said that there was no intention for the commission of the offence in question. As such, the offence would not fall under Section 302 IPC, at the most, the acts of the accused would fall under Section 304 Part II IPC. Accordingly, the finding of the trial Court that the accused had not committed the offence cannot be upheld. However, at the same time, the offence cannot be held to be one under Section 302 IPC. As such, the judgment of the trial Court in S.C.No.441 of 2005, dated 1.3.2007, is set aside and the accused is found guilty for the offence under Section 304 Part II IPC and sentenced to suffer imprisonment for two years. The criminal appeal is allowed to the extent indicated above. The remand period, if any, shall be set off under section 428 Cr.P.C. _________________ V.ESWARAIAH, J. _____________________ P.SWAROOP REDDY, J. 22.12.2010 kpr