THE HON’BLE SRI JUSTICE B.N.RAO NALLA CRIMINAL APPEAL No.137 of 2006 JUDGMENT: This criminal appeal is filed by Accused No.1 against his conviction and sentences in S.C.No.102 of 2005 vide judgment dated 25.01.2006 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 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 and 448 IPC while acquitting A2 for the said offences. Consequently, A1 was convicted for the offence under Section 325 IPC and was 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 above conviction and sentences, Accused No.1 preferred the present appeal. 6. The learned counsel for the appellant contended that the court below failed to see that the medical evidence did not corroborate the oral evidence; that PWs 2 to 6 are interested witnesses; that PWs 1 to 4 have made improvements while giving the evidence before the trial court and that non-examination of Radiologist, who has done C.T. scanning, is fatal to the case of the prosecution. 7. The learned Public Prosecutor submitted that the evidence of PW.1 is corroborated by the evidence of PWs 2 and 3. PW.4, who is examined as circumstantial witness, stated that he saw A1 scaling wall of PW.1 with an intention to escape. The evidence of PW.7-Medical witness is that PW.1 suffered three injuries which are grievous in nature and they are possible by blunt weapon like-MO.1- iron pipe. The evidence of PW.10, who is examined as punch witness for recovery of M.O.1, in whose presence A1 is alleged to have confessed the commission of offence with the iron pipe which he kept at his house and he produced the same before the Police under Ex.P.8 recovery Panchanama. In view of the evidence of PWs 1 to 4, 7 and 10, the trial court rightly convicted A1 under Sections 325 and 448 IPC. 8. 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. 9. The evidence of PW.7 is that PW.1 sustained depressed fracture of left temporal bone and that said injury is grievous in nature. That Ex.P.2 is the wound certificate and Ex.P.3 is the discharge card. 10. Evidence of PW.1 goes to show that A1 voluntarily caused grievous hurt by using iron pipe-M.O.1. The contention of the learned counsel for the appellant that non-examination of Radiologist is fatal to the case of the prosecution is not acceptable since PW.7 gave his opinion basing on the CT scan report as to the nature of injuries sustained by PW.1. Further, the evidence of PW.1 is corroborated by PWs 2 to 6. Thus, an offence under Section 325 IPC is established. 10. 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. 11. So far as the charge under Section 452 IPC is concerned, it is seen that A1 has committed criminal trespass by entering into the house of PW.1, but, there is no evidence on record to show the purpose for which A1 entered into 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. 12. Having regard to the evidence brought on record by the prosecution and facts and circumstances of the case, this court is of the considered opinion that the trial court has not committed any error in convicting A1 for the offences under Sections 325 and 448 IPC. 13. Hence, the Criminal Appeal fails and the same is dismissed. _____________ NALLA, J -06-2010 Stp