THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE RAJA ELANGO DATED: 19-07-2011 CRIMINAL APPEAL No. 1635 OF 2007 Between: Mohd. Akthar Uz Zama Khan alias Akthar ..... APPELLANT AND The State of A.P, rep., by its Public Prosecutor, High Court of A.P., Hyderabad .....RESPONDENT THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No. 1635 OF 2007 JUDGMENT: (Per the Hon’ble Sri Justice A. Gopal Reddy) In all, three persons including the appellant – A-1 were put on trial for the offence punishable under Section 302 IPC in S.C No. 59 of 2001 on the file of the I Additional Metropolitan Sessions Judge, Hyderabad for causing the death of one Cheruku Rajesh Goud (hereinafter referred to as the deceased) on 17-02-2000 at 7.00 PM behind Datson Hotel at Sanathnagar. The case against A-2 was abated as he died during the pendency of the case. The case against A-3 was split up and ended in his acquittal in S.C No. 195 of 2001. The appellant – A-1 was convicted for the offence under Section 326 IPC and was sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default, to suffer simple imprisonment for five months. Hence, the present appeal by the appellant A-1 challenging the conviction and sentence recorded against him. The prosecution story, as unfolded during the course of trial, briefly stated, is as under: PW 1 is the father and PW 2 is the brother of the deceased. The deceased was working as an employee in an electronic shop at Ameerpet. He used to go to gym at MCH Vyamshala near Sanathnagar and PW 3 was his coach. One week prior to the date of incident, the deceased after coming from the gym and while going to his shop, stopped at a pan shop and took gutkha on credit. At that time, A-1 along with another person came there and picked up a quarrel with the deceased. PW 4 who was near the bus stand pacified the issue and sent them away. The deceased informed the same to PWs 1 to 3. Subsequently, as he was down with fever, he could not go to gym for one week. On the date of incident i.e., on 17-02-2000, the deceased went to the gym and left by 6.15 PM. At about 6.30 PM, PW 2 and his uncle were having tea at Datson Hotel. On hearing the cries of the deceased, they witnessed A-1 stabbing the deceased on his chest and when PW 2 tried to catch hold of A-1 and A-2, they fled away. PWs 5 and 7 who were also standing nearby witnessed the same. After the incident, PW 2 first moved the deceased to the Sanathnagar Police Station and on receiving the oral information from him, the then Sub Inspector of Police – PW 11 found the deceased in an auto and on the advise of the Inspector of Police, he shifted the deceased to Gandhi Hospital. PW 11 visited Gandhi Hospital at 7.45 PM and recorded the statement of the injured marked as Ex.P-7. He then visited the scene of offence and held panchanama in the presence of PW 6 which is marked as Ex.P-1. Ex.P-2 is the rough sketch of the scene. He again visited the hospital and recorded the statements of the deceased (not marked) and PWs 1, 2 and 4. On 18- 02-2000, the deceased succumbed to the injuries. On the next day i.e., on 19-02-2000 on receipt of the death intimation PW 11 altered the section of law and issued altered F.I.R which is marked as Ex.P-9 and also held inquest over the dead body of the deceased in the presence of PW 8. Thereafter, the dead body was forwarded for post mortem examination. On 19-02-2000 on requisition, PW 10 - the Associate Professor, Forensic Medicine Department, Gandhi Medical College held autopsy over the dead body of the deceased and opined that the cause of the death was due to stab injury on the chest and Ex.P-6 is the post mortem report. PW 12 – the Inspector of Police took over further investigation and arrested A-1 to A-3 on 25-02-2000 and in pursuance of the confession made by A-1, he seized knife MO – 4 under Ex.P-12 seizure report. On 10-03-2000 he sent the material objects to Regional Forensic Science Laboratory and Ex.P-13 is the FSL report. After receiving all the relevant documents and on completion of investigation, he filed the charge sheet before the learned VI Metropolitan Magistrate, Hyderabad who registered it as PRC No. 32 of 2000 and later committed to the Court of Sessions. On committal, the learned Metropolitan Sessions Judge, Hyderabad registered the same as S.C No. 59 of 2001 and made over to the learned I Additional Metropolitan Sessions Judge, Hyderabad who framed the charge against the accused for the offence under Section 302 read with Section 34, read over and explained the same to them. The accused pleaded not guilty and claimed to be tried. To substantiate the guilt of the accused, the prosecution examined PWs 1 to 12 and marked Exs.P-1 to P-13 and produced MOs 1 to 5. After closure of the prosecution evidence, the appellant – A-1 was examined under Section 313 Cr.P.C with reference to the incriminating material of the prosecution witnesses to which he denied the prosecution evidence and reported no evidence. The learned Sessions Judge accepting the evidence adduced by the prosecution namely of PWs 2, 5 and 10 found the appellant – A-1 guilty for the offence punishable under Section 326 IPC and convicted and sentenced to imprisonment as aforestated. Questioning the same, the present appeal is filed by the appellant – A-1. Learned counsel for the appellant contends that the entire case of the prosecution rests upon the evidence of PW 2 who is a chance witness and none other than the brother of the deceased and his presence at the scene of offence is doubtful. PWs 5 to 7 who are also shown as eyewitnesses to the incident have not supported the case of the prosecution. In the absence of any corroborating evidence, basing on the evidence of PW 2, the appellant – A-1 cannot be convicted. Further he cannot be imposed the sentence of imprisonment for life for the offence punishable under Section 326 IPC. The learned Public Prosecutor submitted that the State has not preferred any appeal against the acquittal of the appellant – A-1 for the offence under Section 302 IPC, since he was sentenced to undergo imprisonment for life. The entire case of the prosecution rests upon the evidence of PWs 2, 5 and 7 who are alleged to be the eye witnesses to the incident and also the statement of the deceased recorded under Section 161 Cr.P.C under Ex.P-7 coupled with the evidence of PW 11 – the Investigating Officer and the medical evidence. PW 2 is none other than the brother of the deceased and his statement was recorded by the police. He deposed that the deceased used to go to gym every day at MCH Vyayamshala near Sanathnagar bus stop and his coach was PW 3. A-1 resides in DNM Colony situated nearer to their residence. One week prior to the death of the deceased, there was a quarrel between A-1 to A-3 and the deceased when the deceased asked for gutkha on credit in the pan shop. During the said quarrel, A-1 beat the deceased and the deceased also beat A- 1. The deceased informed the said incident to himself and PW 1 and that he instructed the deceased not to dispute with A-1 and A-2 as they were already involved in some cases and due to fever, the deceased stopped going to the gym. On 17-02-2000, the deceased went to the gym and at 6.30 PM, himself and their uncle Raja Goud were sitting at Datson Hotel near Sanathnagar bus stop and are having tea. The deceased came running to them shouting anna, mama and then they observed him and found A-1 stabbing the deceased on his chest and running away on seeing them. When they tried to catch, A-1 and A-2 escaped from the scene of offence. PW 2 stated in the cross examination that the first incident of stabbing the deceased had taken place on the back side of Datson Hotel and immediately himself and the said Raja Goud shifted the deceased to Sanathnagar Police Station and PW 11 - the Sub Inspector of Police asked them to shift the deceased immediately to Gandhi Hospital and the deceased was shifted to Gandhi Hospital within five or ten minutes where he was examined by the police. PWs 3 and 4 are not eyewitnesses to the incident. PW 5 who is stated to be an eye witness deposed that A-1 resides nearby his basthi and on the date of incident at 7.00 PM, he was at Geetha Hotel situated near Sanathnagar bus stand and he witnessed A-1 stabbing the deceased and on seeing the same, he shouted and ran away from the scene. PW 2 and his uncle Raja Goud were present there at the time of the incident. On 19-02-2000, the police called him and recorded his statement. In the cross examination, PW 5 stated that his house is situated ½ kilometer away from the scene of offence and he is working as a mason. He admitted that he has not stated to the police that he was taking tea at Geeta Hotel at the time of the incident and that on seeing the incident, he shouted and ran away from the scene of offence. PW 7 who is another eye witness stated that while he was standing along with one Balreddy at Janata Hotel at Sanathnagar and talking with each other, the deceased was coming running and behind him A-1 and A-2 were also running with knife and A-1 stabbed the deceased and that thereafter A-1 and A-2 ran away from the scene. PW 10 – Associate Professor, Forensic Medicine Department, Gandhi Medical College, Hyderabad conducted autopsy over the dead body of the deceased and found the following injuries: “1. Sutured wound 26 cms along with 25 sutures present over front of chest extending from right nipple to left axilla. 2. Stab wound 2 x 1 cms over the right side of the chest. 3. Left third rib is cut near costochondral junction. 4. Stab injury 2 x 1 cm x muscle deep over the anterior wall of heart on it side on left side. 5. Stab injury 2 x 1 x 4 cms over middle lobe of right lung. Right lung collapsed. 6. 500 CC blood present in right pleural cavity, 300 cc blood present in left pleural cavity.” PW 10 opined that the cause of the death is due to stab injury on chest and issued Ex.P-6 post mortem examination report. But, curiously in the cross examination PW 10 stated that the cause of the death is due to cumulative effect of all the above six injuries on the chest. PW 11 – the Sub Inspector of Police, Sanathnagar Police Station also corroborated the evidence of PW 2 stating that on 17-02-2000 at about 7.15 PM while he was in the police station along with the Inspector of Police, he received oral information from PW 2 that his brother was stabbed and he came out from the police station along with Inspector of Police and found the injured in the auto in a serious condition in front of the police station. On his advise, the inured was shifted to Gandhi Hospital. He visited Gandhi Hospital at 7.45 PM on the same day and recorded the statement of the injured, returned to the police station and registered the crime at 21.30 hours for the offence under Section 307 IPC and issued Ex.P-8 F.I.R. He further stated that on the same day at 10.00 PM, he visited the scene of offence and conducted scene of offence panchanama in the presence of PW 6 and another and seized two rubber slippers and drafted rough sketch. He again visited the hospital and again recorded the statement of the deceased under Section 161 Cr.P.C apart from the statements of PWs 1, 2 and 4 and LWs 2, 4 and 7. In the statement recorded under Section 161 Cr.P.C., the deceased stated that on 17-02-2000 at 7.00 PM he went to attend the gym and after doing exercise he returned from the gym and when he reached Sanathnagar bus stand, A-1, A-2 and A-3 caught him and took him back side of Datson Hotel on the steps towards Snooker. A-2 stabbed him with a knife on his chest and when he was running out by crying from the steps outside Datson Hotel, his uncle Raja Goud and PW 2 who were at the front side of the hotel looked at them and shouted. Then A-1 Akthar had come to him with a knife and stabbed. The post mortem report and the evidence of the doctor disclosed stabbing of the deceased on the chest. The evidence of PWs 1, 5 and 7 also disclosed that it is A-2 who first stabbed the deceased and when he was trying to escape, A-1 also stabbed him. The learned Sessions Judge after analyzing the evidence carefully was of the view that PWs 2 and 5 had not deposed that all the injuries on the chest were caused by A-1 since the case of the prosecution was that A-2 also caused knife injuries on the chest of the deceased at the backside of Datson Hotel i.e., at the first scene of offence for which there is no evidence. Therefore, it is not possible to come to the conclusion that in the injuries inflicted by A-1 alone resulted in the death of the deceased and hence, he can be convicted for the offence under Section 326 IPC. In the statement recorded under Section 161 Cr.P.C which can be treated as dying declaration, the deceased himself stated that it is A-2 who caused injuries first while running and when he went to PW 2 and his uncle shouting, A-1 also inflicted injury and he has not stated that all the six injuries were inflicted by A-1 alone. Therefore, as rightly held by the trial Court, A-1 is liable to be punished under Section 326 IPC as he intended to cause grievous injury to the deceased and since the nature of injuries found on the deceased, in our opinion, attract the definition falling under Clause (viii) of Section 320 IPC establishing that the injuries were such to endanger the human life. In view of the fact that whether the said injuries are caused either by A-2 or A-1 is not definite, while upholding the conviction of the accused for the offence under Section 326 IPC, we are of the opinion that the sentence of imprisonment is to be reduced to one year. In the result, the criminal appeal is allowed in part. The conviction and sentence recorded against the appellant – accused No.1 in S.C No.59 of 2001 by the learned I Additional Metropolitan Sessions Judge, Hyderabad for the charge under Section 326 IPC is upheld, but the sentence of imprisonment is reduced to one year and the fine amount imposed on him is maintained. A. GOPAL REDDY, J RAJA ELANGO, J 19-07-2011 ks