IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE FIFTEENTH DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT: THE HON’BLE SRI JUSTICE G. BHAVANI PRASAD CRIMINAL APPEAL No.1202 of 2005 Between: Shaik Ahmed Pasha, S/o.Madhar Ali, Aged 27 years, Occ:Coolie, R/o.Medhar Basti, Kothagudem Appellant AND The State of Andhra Pradesh Rep. by Public Prosecutor, High Court of A.P., Hyderabad. …Respondent The Court made the following: THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL APPEAL No.1202 of 2005 ORDER: The accused in S.C.No.1 of 2003 on the file of the II Additional Sessions Judge (Fast Track Court – I) at Khammam filed the appeal against the conviction and sentence imposed on him for the offence punishable under Section 304 Part I of Indian Penal Code (‘I.P.C.’, for brevity) by the judgment dated 23.06.2003. The accused was prosecuted by the Circle Inspector of Police, Kothagudem Town in Crime No.4 of 2000 of Kothagudem III Town Police Station alleging that the accused is a drunkard and he and his parents pressurized the first and second wives of the accused to indulge in prostitution to earn money. Consequently, they left the accused and the accused again married the eldest daughter of Mohamed Suleman in 1999. Suleman gave cash of Rs.5,000/-, a watch and household articles etc., as dowry. After about five months of normal marital life, the accused and his parents started pressurizing the deceased Shaik Malen Bee also to indulge in prostitution for which, she refused. Then the accused and his parents beat Shaik Malen Bee many times and with the intervention of her parents, the accused and Shaik Malen Bee were residing separately from the parents of the accused. The accused was still assaulting Shaik Malen Bee and on the day of Ramzan, Korlapati Satyanarayana presented Rs.50/- to the accused. On 13.01.2000, at about 08:00 P.M., the accused came home in a drunken state and disputed with Shaik Malen Bee and attempted to force her to cohabit with Korlapati Satyanarayana. Shaik Malen Bee refused on which, the accused beat her with a stick on the head repeatedly causing severe bleeding injuries and she fell unconscious. The accused shifted her to Government Hospital, Kothagudem and informed his parents-in-law, who found their daughter in unconscious state in the hospital. Shaik Malen Bee died on 15.01.2000 while undergoing treatment and on the report of Mohamed Suleman, a crime was registered and investigated into. An inquest was conducted over the dead body and the result of the autopsy stated the cause of the death to be the head injury. The accused was arrested on 31.01.2000 and on his confession before mediators, the weapon of offence i.e. the stick was recovered from the house of the accused under a Panchanama. The same was sent for analysis to the Forensic Science Laboratory and hence, the accused was charged for the offence punishable under Section 302 of I.P.C. After the accused entered appearance before the Magistrate, copies of the documents were furnished to him and the case was committed to the Court of Session. A charge under Section 302 of I.P.C. was framed against the accused by the Court of Session for which, the accused pleaded not guilty. P.Ws.1 to 15 were examined and Exs.P.1 to P.14 and M.O.1 were marked during the trial. The accused denied the incriminating circumstances appearing in the evidence against him, when he was examined under Section 313 of Cr.P.C., but he did not produce any defence evidence. He gave his own version of the sequence of events. The trial Court rendered the impugned judgment extensively referring to oral and documentary evidence and contentions of both the parties. The relationship of P.Ws.1 and 2 with the deceased, the marriage of the deceased with the accused and the couple alone residing in the house, were noted to be admitted. The accused taking Shaik Malen Bee to the hospital with head injury on the night of 13.01.2000 was also noted to be admitted, apart from the death of Shaik Malen Bee on 15.01.2000, while undergoing treatment. The trial Court also believed from the evidence of the witnesses about his insisting on the deceased to indulge in prostitution, which can be inferred from the circumstances and even otherwise, the evidence disclosed sufficient motive for the accused to beat his wife and cause injuries. The trial Court also concluded that the injuries caused on the head and fracture on the skull, caused the death of Shaik Malen Bee, who would not have survived in spite of any treatment. The trial Court accepted the evidence of P.Ws.4, 5, 7 and 8 about they being eyewitnesses to the quarrel between Shaik Malen Bee and the accused and the accused causing injuries on the head of the deceased with a stick. The trial Court also looked at the circumstantial corroboration in the evidence and as the accused never intended to kill the deceased but had only intended to commit such an act as was likely to cause death or to cause such an injury which was likely to cause death only with such knowledge, it was concluded that the accused was found to be guilty of an offence punishable under Section 304 Part I of I.P.C. only. After examining the accused about the question of sentence, the trial Court handed over the sentence of Rigorous Imprisonment for ten years and a fine of Rs.100/- and in default, Simple Imprisonment for fifteen days with a set off of the period under remand under Section 428 of Cr.P.C. to the accused. The accused challenged the said judgment through the assistance of the Andhra Pradesh High Court Legal Services Committee contending that the motive was never mentioned in the First Information Report; no witness had seen the accused quarrelling with his wife; the highly improbable presence of the alleged eye-witnesses and the alleged recovery of the stick could not have been acted upon; and the benefit of reasonable doubt should have been extended to the accused. Smt.Naseeb Afshan, learned counsel for the appellant and Sri K.Venkateswara Rao, learned counsel, representing the learned Public Prosecutor are heard. The point for consideration is whether the prosecution proved the guilt of the accused for the offence punishable under Section 304 Part I of I.P.C. beyond reasonable doubt and if so, what would be the reasonable punishment to be imposed? P.W.1 – the father and P.W.2 – the mother of the deceased had absolutely no reason or motive to depose falsely against the accused and that they tried to save the marriage of their daughter, notwithstanding her complaints about the attempts by the accused to make her turn to prostitution was but the natural reaction of such middle class parents in the Indian rural setting. Their evidence also discloses that the accused was aggrieved by the refusal of the deceased to indulge in prostitution and the parents denied any illicit intimacy for the deceased with any others. The parents had gone to the Government Hospital, Kothagudem on the information that the accused admitted her with the head injuries in the hospital and though P.W.2 also stated about the demands by the accused for Rs.1,000/- from her and the payment of Rs.300/- by the sisters of the deceased, which was not spoken to by P.W.1, the same is not of great significance. P.W.3 – the junior paternal uncle of the deceased went to the Government Hospital, Kothagudem on information from the parents of the deceased and P.W.6 only spoke about his taking the photographs of the dead body. P.W.9 was a mediator for the observation report of the scene of offence under Ex.P.6, while P.W.13 – the Sub Inspector of Police only registered a case and conducted a part of the investigation. While the evidence of the witnesses above referred to provides the circumstantial background for the allegations against the accused, P.Ws.4, 5, 7 and 8 claimed to be the eye- witnesses to the quarrel between the accused and the deceased and P.W.4 claimed to have seen the bleeding injuries on the head of the deceased and a stick in the hand of the accused and he also claimed to have heard the cries of the deceased that she was dying. He spoke about the accused taking the deceased in an auto to the Government Hospital, Kothagudem. P.Ws.5, 7 and 8 deposed similarly with P.W.7 claiming to have physically witnessed the accused beating the deceased with a stick, while P.W.8 did not see the actual beating. However, it can be deduced from the evidence of P.Ws.4, 5, 7 and 8 that there was a quarrel in the privacy of the matrimonial home of the accused and the deceased during which, the deceased raised cries that she was dying and that the deceased with the bleeding injuries and the accused with a stick in his hand had come out of the house of the accused and the accused took the deceased in an auto to the Government Hospital, Kothagudem. Even if the claim that any of the witnesses were eyewitnesses to the actual beating was to be doubted, the above probablised circumstances can point out only to the possibility of the accused so assaulting and injuring the deceased and admit of no other possibility. The Inquest report – Ex.P.7, for which P.W.10 was one of the mediators, contained the opinion of the inquest mediators about the deceased dying due to being beaten on the head with a stick. The recovery of M.O.1 – stick from the house of the accused in pursuance of his confessional statement under a panchanama before mediators – Ex.P.8 was spoken to by P.W.11, who was not shown to be in any manner interested in deposing falsely against the accused. The Medical Officer who conducted the autopsy over the dead body was P.W.12, who deposed about the fatal injuries being possible with a stick like M.O.1 and the injuries found on the dead body being sufficient to cause death. P.W.14 was the Medical Officer who admitted the deceased into hospital in an unconscious state with a head injury and who sent the hospital intimation – Ex.P.13 to the police and P.W.15, the Inspector of Police had spoken in detail about the investigation conducted by him including the recovery of M.O.1 – stick at the instance of the accused. Nothing substantial has been elicited from any of these witnesses to doubt their independence or the credibility of their version and P.Ws.4, 5, 7 and 8 cannot be suspected to be motivated in any manner, merely on the strength of any suggestions during the cross-examination. The trial Court had analyzed the evidence very carefully and in great depth and these conclusions, for its own reasons, cannot therefore be deviated from for the causes stated above. It is to be therefore accepted that the prosecution proved beyond reasonable doubt that the death of the deceased was solely and squarely attributable to the injuries caused by the accused with a stick on her head. The trial Court considered the said overtacts of the accused to be constituting only the offence punishable under Section 304 Part I of I.P.C., as the intention of the accused can only be presumed to be to cause such bodily injury, as is likely to cause death and it could not have been the intention of the accused to cause death or intention to cause such bodily injury or do such act, which can be brought within the description of Clauses 2 to 4 of Section 300 of I.P.C. The conclusion of the trial Court in this regard was not challenged by the prosecution by way of any appeal against the acquittal of the accused for the offence punishable under Section 302 of I.P.C. and in the absence of any strong reasons to the contrary, that conclusion has also to be upheld. However, coming to the question of sentence, the accused was aged about 25 years by the time of the incident. His claim that he has to maintain his aged parents and the child of his sister who passed away was not factually disputed. The accused was not shown to be having any past criminal record, notwithstanding the allegations about the attempts by him and his parents to force the wives of the accused into prostitution. The accused was working in a brandy shop as an employee by the time of the marriage with the deceased, even according to P.W.1 and the facts and circumstances disclosed that the injuries caused by the accused, which proved to be fatal, were never with the intention of killing the deceased. The accused had also suffered detention for ten months and 21 days before conviction, and a total period of 3 years 14 days by 16.08.2005. Of course, on 16.08.2005, this Court directed suspension of sentence of imprisonment subject to conditions and though the trial Court itself felt it to be a fit case to award a lenient sentence, it handedover Rigorous Imprisonment for ten years and a fine of Rs.100/- to the accused. There is no minimum sentence prescribed under Part I of Section 304 of I.P.C. and taking an overall view of the facts and circumstances, a reasonable sentence of imprisonment of five years in total, will be in the interest of justice. Therefore, the sentence imposed on the accused by the judgment dated 23.06.2003 in S.C.No.1 of 2003 on the file of the II Additional Sessions Judge (Fast Tract Court – I) at Khammam is modified to Rigorous Imprisonment for a period of five years, while the conviction for the offence punishable under Section 304 Part I of I.P.C. and the sentence of fine of Rs.100/- with a default sentence of Simple Imprisonment for 15 days are maintained. The period of detention undergone by the accused prior to conviction shall be set off from the sentence under Section 428 of Cr.P.C. and the accused/appellant shall surrender forthwith before the trial Court to undergo the remaining portion of the sentence, in default of which, the trial Court shall take steps to have the sentence so executed. The Criminal Appeal is accordingly ordered. _______________________ JUSTICE G.BHAVANI PRASAD December 15, 2009 BVV