IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE SECOND DAY OF FEBRUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE V.SURI APPARAO CRIMINAL APPEAL Nos.1527/2005 & 997/2007 CRIMINAL APPEAL No.1527/2005 Between: Syed Yakub Pasha .....APPELLANT/ACCUSED No.1 AND The State of Andhra Pradesh, Rep.by Public Prosecutor, High Court of Andhra Pradesh, Hyderabad .....RESPONDENT CRIMINAL APPEAL No.997/2007 Between: State of A.P.rep.by the Public Prosecutor, High Court of A.P. Hyderabad .....APPELLANT/PETITIONER AND 1. Syed Yakub Pasha 2. Md.Yakub Shareef .....RESPONDENTS/ACCUSED The Court made the following: THE HON'BLE SRI JUSTICE V.ESWARAIAH & THE HON'BLE SRI JUSTICE V.SURI APPARAO CRIMINAL APPEAL Nos.1527/2005 & 997/2007 JUDGMENT: (per Hon’ble Sri Justice V.Eswaraiah) Crl.A.997/2007 is filed by the State against the judgment in SC.No.140/2005 on the file of the III Addl.Sessions Judge, Warangal dated 27.09.2005 in acquitting A1 and A2 for the charges under Sec.302 r/w.Sec.34 IPC and Sec.27 of the (Indian) Arms Act and convicting A1 for the offence under Sec.304 Part-II of IPC and sentencing him to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.1,000/- and in default to undergo rigorous imprisonment for a period of three months. 2. Crl.A.1527/2005 is filed by Accused No.1 against the same judgment in convicting and sentencing him, as stated above. 3. The case of the prosecution, in brief, is that A1 and A2 are AR police constables and A1 was attached to Mr.Kondam Madhusudhan Reddy, Ex.Chairman of Komuravelli Devasthanam as gunman and A2 was attached to Mr.N.Sudhakar, Ex.MLA of Chennur and they were residents of Warrangal. While so, on 06.07.2004 A1 and A2 went to Warangal and consumed alcohol at Warangal and returned to Hanamkonda at about 5.30 p.m. and went Dolphin Bar and Restaurant and consumed liquor. The deceased Siddam Ganesh was sitting in the counter at Dolphin bakery, which is adjacent to Dolphin Bar & Restaurant. A1 and A2 started quarrelling with the employees and so quarrelling they were taking away one carton of beer bottles. PWs 2 and 3 stopped the accused and informed the same to the owner (deceased). Both the accused went to the bakery and revealed their identity and A1 took out his service pistol and pointed it on the deceased. A2 caught hold of the deceased and both A1 and A2 dragged him to the bar and A1 opened fire on the deceased. The bullet went into the mouth of the deceased and came out from the neck. Due to bullet injury, the deceased fell down on the ground. When the persons gathered there tried to apprehend the accused, A1 again opened fire in the air. PWs 2 and 3 who were the employees of Dolphin Bar & Restaurant and others apprehended A2, and other workers apprehended A1. PW 1, the father of the deceased, and PW 9 shifted the deceased to Rohini hospital for treatment. PWs 7 and 8 witnessed the incident and the Doctor referred the deceased to the NIMS Hyderabad for better treatment. On receipt of the complaint from PW 1, the Sub-Inspector of Police, Subedari (Law & Order) registered a case in Cr.No.447/2004 under Sec.307 r/w.Sec.34 IPC and sec.27 of the Arms Act and dispatched the express FIRs to all the concerned. 4. PW 18, the Inspector of Police, Subedari took up the investigation, rushed to Rohini hospital and found the injured. He examined PWs 1 to 9 and recorded their statements. PW 18 also proceeded to the scene of offence and conducted scene of offence panchanama in the presence of PW 12 and one Srinivas and taken samples of bloodstains and seized two empty rounds, one lying round of 9 mm pistol, one fire bullet and one knock out beer carton from the scene of offence and drafted the scene of offence sketch. He took both the accused into his custody in the presence of PW 13 and one Lingaiah, and the accused voluntarily confessed the commission of offence. PW 18 seized one service 9 mm pistol and bloodstained clothes from A1 under the cover of panchanama and found them in intoxicated condition and referred them to MGM Hospital for examination. The Investigating Officer remanded the accused to judicial custody. He collected material objects from the Medical Officer, MGM Hospital and examined the accused and collected samples and sent the same to Forensic Science Laboratory, Hyderabad for analysis. The analysis report discloses that the sample contained alcohol. The service pistol has been sent to Forensic Science Laboratory, Hyderabad for examination and report. As per the said report, the service pistol is the company made 9mm calibre pistol and it was fired previously and it is in working order. Item-2 empty 9 mm calibre rimless cartridges case, and item-3 9 mm calibre copper jacket bullet were fired from item-1 service pistol. Item-4 calibre rimless cartridge is company made and lives and it can be fired from item-1. Items-1 to 4 came under purview of Arms Act. The injured Siddam Ganesh while undergoing treatment succumbed to injuries on 27.07.2004 at 03.00 hours. On receipt of the death intimation, the Investigating Officer altered the section of law from 307 IPC to 302 IPC and submitted the alteration memos to all the concerned. 5. The Sub-Inspector of Police, Panjagutta received the death information and addressed a requisition to the Mandal Revenue Officer for inquest and the inquest over the dead body of the deceased was conducted in the presence of inquestdars. PW 16 Doctor conducted post mortem examination over the dead body of the deceased and issued post mortem report, opining that the cause of death to the best of his knowledge and belief was “Death due to the fire arm injury to cervical spinal cord”. After completion of investigation, charge sheet was filed under Sec.302 r/w.34 of IPC and under Sec.27 of the Arms Act. 6. On appearance of the accused, the learned Sessions Judge framed the charges against A1 and A2 under Sec.302 r/w.34 IPC and sec.27 of the Arms Act, read over and explained to them in Telugu, for which they pleaded not guilty and claim to be tried. 7. In support of its case, the prosecution examined PWs 1 to 19 and got marked Exs.P1 to P18 and Mos.1 to 5. The accused were examined under Sec.313 Cr.p.c. and they denied the incriminating evidence adduced against them and marked Exs.B1 to B3 on their behalf. 8. As already stated, on an analysis of both oral and documentary evidence, the learned Addl.Sessions Judge acquitted A1 and A2 for the offence under Sec.302 r/w.34 IPC and under Sec.27 of the Arms Act and convicted A1 for the offence under Sec.304 Part-II IPC and sentenced him, as stated supra. Aggrieved thereby, these two criminal appeals have come up, one by the State and another by A1. 9. PW 1 is the father of the deceased. He deposed that his eldest son Ganesh (deceased) was running a bakery by name Dolphin Bakery at Subedari, Hanamkonda. On 06.07.2004 while himself, deceased and relatives were in Dolphin bakery, PW 4 came and informed that the accused were taking away one beer carton without making any payment. In the mean time, both the accused came and stated to Ganesh (deceased) that they were the police constables and they are taking away the beer carton and the workers of the bar are obstructing, so saying they used vulgar language against the deceased. On that, himself and the deceased informed the accused that though they may be police, they have to pay money for the carton of the beer. On that, the accused further abused the deceased in filthy language and A1 came upon the deceased and kept 9 mm pistol on the right side of his temple and threatened that he would fire. A2 caught hold of the filt of the deceased Ganesh, and both of them dragged the deceased Ganesh to the parking place of the restaurant, and A1 fired. When himself and others tried to prevent them, A1 fired in the air. On receipt of the bullet injury, the deceased fell down. In the mean time, the workers chased and caught hold of A2, and A1 escaped and jumped the wall and ran away. The workers of the bar chased and caught hold of A1 and informed to the police, Subedari P.S. Thereafter, they shifted the deceased Ganesh to Rohini hospital in an auto. The Medical Officer of the hospital started treatment, thereafter, he went Subedari police station and presented Ex.P1 written report to the police. The police came and took the custody of A1 and A2. The police examined him. The deceased Ganesh died after 21 days of the incident while undergoing treatment. 10. In the cross examination, PW 1 stated that he has not seen the carton of beer in the hands of the accused when they came to the deceased. He heard the same through the workers. He has not asked the workers about the carton of the beer who has taken, who was carrying and who failed to pay the amount. He has not seen the accused prior to the date of incident. For the first time, he saw them on the date of the incident. At the time of firing, his son was facing towards south and A1 was facing towards north. The firing has taken place within one yard. Bullet came out from mouth through the back of the head. The workers were also present at that time and they were annoying. PW 4 was the person who present throughout the occurrence. The workers did not inform him that the accused intended to purchase the carton of beer by paying money. He denied the suggestion that the workers of the Bar & Restaurant informed them that the accused intended to purchase a beer carton with the bill. He also denied the suggestion that the deceased stated that there was no custom of passing bill for purchase of beer and if the accused intends to purchase, they can as well purchase without bill. He denied the suggestion that on demand by A1 for the bill, his son deceased took A1 into the bar. He also denied the suggestion that the deceased tried to take up the pistol from the possession of A1 and in the scuffle, the weapon fell on the ground. He also denied the suggestion that in the scuffle, both A1 and deceased did not down for the weapon and during that scuffle, the weapon went off accidentally, causing injury to the deceased on the left side of the cheek. He denied the suggestion that he has not stated to the police that the accused abused in foul language. He stated that the distance from the bakery and place of occurrence is about 10 to 15 yards. The distance to the bakery and the bar is 10 yards. There is a road by the side of the bakery, and there is a sweet shop after the road. He denied the suggestion that his sons were avoiding to pay sales tax. He denied the suggestion that he himself and PW 4 and other were not present at the scene of offence. 11. PW 2 is the supervisor of the Bar. He stated that on 06.07.2004 at about 5.30 p.m. both the accused came to their bar and asked for beer, they gave two beer bottles. Again the accused asked for another beer and they have provided the same and asked for payment, but the accused refused to pay the bill stating that they were the police and gunmen of VIPs. In the meantime they received stock and the accused started carrying a carton of beer without paying the cost and then himself and other workers objected the accused stating that their owner would not accept this type of transaction, then the accused asked him where is his owner. The accused abused the owner. A2 dragged his owner and A1 kept the gun on the temple of the deceased. The accused dragged his owner from bakery to restaurant. Accused stated that they would kill his owner and after firing second round, A1 escaped. 12. In the cross examination, PW 2 stated that the accused refused to pay the bill for drinking of beer though he written the bill for supply of the beer to the accused. He has given the bill to the police. A1 carried the carton to the public road from the bar shop to a distance of 10 yards. Then they have caught hold of the accused and brought them back along with carton and produced before the owner (deceased). There was exchange of words between them and A1. He stated that A2 caught hold of the deceased at the time of firing by A1. He denied the suggestion that in the scuffle, the pistol fell down on the ground and it went off accidentally. He stated that he saw the incident and so he is saying that the bullet went through the mouth and came out. He denied the suggestion that he is not the eyewitness. 13. PW 3 corroborated the evidence of PW 2 and stated that the accused dragged the deceased to the parking place of the restaurant and A1 without giving any chance to his owner fired him and on that his owner fell down. Thereafter, when they raised cries, A1 fired in the air and ran away. Himself, PW 2 and PW 5 caught hold of A2 and the deceased was shifted to the hospital. Nothing could be elicited in his cross examination in support of the defence. 14. PW 4 who was present throughout the incident stated that on 06.07.2004 he went to PW 1 to talk on some issue and when they were in bakery, PWs 2 and 3 came and informed that some quarrel was going on in the bar. Behind them both the accused came there. When PWs 2 and 3 shown the deceased as their owner, the accused stated that though they are the police and gunmen of VIPs, they were asked to pay money. So saying, A2 caught hold of the right hand of the deceased Ganesh while A1 pointed the pistol on the temple of the deceased. Thereafter, both the accused took the deceased to the parking place of bar. They followed them. The accused threatened them that they would fire and kill the deceased and accordingly, A1 fired at the deceased and the deceased fell down with the injury. When they tried to apprehend the accused, A1 fired in the air. Persons gathered there caught hold of A2 and A1 escaped. A2 caught hold by PW 2 and another. Himself, PW 5 and PW 6 caught hold of A1 by chasing. Meanwhile, police came and they handed over the accused to their custody. In the cross examination also he stated that he along with PWs 2, 3 and others followed the accused to the parking place. He denied the suggestion that the accused demanded the bill and the deceased refused. He also denied the suggestion that the fire was accidental and that too it occurred in the scuffle between the accused and the deceased. 15. PW 5 who is worker working in the bakery stated that he witnessed the incident. He stated that the accused after taking three beer bottles without paying money, created nuisance stating that they are the police personnel and the bar owner and the workers have no right to question them and demand money. A2 stated that he would carry the carton of beer without paying money. When A2 was carrying the beer carton, one of the workers stopped, and then the workers went to the bakery and informed the same to the deceased. Accused also accompanied the workers stating the deceased that they were the police personnel and gunmen of VIPs and they have no need to pay money. So saying, A1 pointed the pistol on the temple of the deceased Ganesh and then A2 dragged Ganesh from the counter to restaurant, which was situated behind the bakery. They were also present in the restaurant including PWs 1 to 5. They raised cries and in the meantime A1 fired at the deceased Ganesh. When they tried to catch hold of A1 along with others, A1 fired in the air. They chased and caught hold of A1 on the road. In the cross examination, he denied the suggestions that the accused demanded the bill but the workers and the deceased refused to pass on the bill. It is stated that they are in the habit of tendering bills to the customers. He denied the suggestion that the accused went away when the workers went and complained to the deceased. 16. PW 6 is another worker working in the Dolphin Bar & Restaurant. He stated that on hearing the galata on the date of the incident he came to the counter and noticed A1 pointing the weapon on the temple of the deceased and A2 dragged the deceased and brought to the restaurant parking place and A1 fired the deceased, on that the deceased Ganesh fell down. Thereafter, PW 1 telephoned to the police and while so, the accused went away, A2 was caught hold by PWs 2 and others in front of the bakery and himself, PW 4 and others caught hold of A1 on the road, and in the meantime police came and they handed over the accused to them. In the cross examination he denied the suggestion that he is not the eyewitness. 17. PW 7 is the watchman of the bakery as well as the Bar & Restaurant. He stated that when he was informed that there was galata at the bar, he went to the counter of the bakery and found that the accused were quarrelling with the owner and at that time, all the workers were present. A2 dragged the deceased from the counter, A1 pointed the pistol on the temple of the deceased and ultimately dragged the deceased from outside the counter to the back. Though they have requested A1, A1 threatened them and fired at the left cheek of Ganesh. PW 2 and others caught hold of A2 and handed over him to police and then the co-workers tried to apprehend A1, he ran away. A1 was also caught hold by PW 5 and two others and handed over him to the police. 18. PW 8 is the supplier in the bar. He also stated that they objected the accused carrying of carton of beer to outside the shop. While so, his co-workers went and informed the owner, the deceased Ganesh. The accused came and caught hold of the deceased, dragged him stating that they would not pay the bill as they were the gunmen of VIPs. A2 caught hold of the deceased and A1 pointed the weapon on the temple of the deceased and they were all present at that time. The accused took the deceased to the parking place of the restaurant and they also followed. A1 fired while A2 caught hold of the deceased. After firing, PWs 2 and 3 caught hold of A2 and PWs 5 and 6 and others caught hold of A1. In the cross examination also he stated that all co-workers working in the bakery as well as in the bar and the customers of the bar were present at the parking place. He denied the suggestion that there was no exchange of words between the deceased and the accused at the parking place and he is not the eyewitness of the occurrence and he has not witnessed the incident. 19. PW 9 is the bill writer. 20. PW 10 is the Neurosurgeon of Rohini Super Specialty Hospital, Subedari, Hanamkonda. He stated that at about 6.55 p.m on 06.07.2004 he has seen the patient by name Ganesh the deceased who suffered from respiratory problem as he was sustained bullet injury. He diagnosed the patient and his diagnosis was “severe cervical spine injury” and found that the injured was unable to move any of the limbs, which medically called as “quadriplegia”. As the respiratory status of the patient was very poor, he incubated and connected ventilator with oxygen and made the patient stabilized, then sutured his wound on the left cheek and right cervical spine right neck. In the cross examination, it is stated that he has not noticed either blackening or tattooing around the entry injury. He could not say the distance from which the injury was caused. He could not say whether the injury was an accidental or homicidal. There can be possibility of causing injury while struggling by two for the weapon. 21. PW 11 is the AR constable, Warangal District. He stated that he was the incharge of the ammunition. On 05.07.2004 he gave 9 mm pistol to A1 along with 20 rounds. He identified MO 1 weapon given to A1. PW 12 is the Panch witness of Ex.P2 crime details form. He stated that police seized two empty rounds and one live round and one fired brass piece of 9 mm pistol in his presence and another mediator. 22. PW 13 is the witness for the confessional statement made by A1 and A2. He stated that on 06.07.2004 at 7.30 p.m. on interrogation by the police, A1 stated that at 6.30 p.m. he went to Dolphin Bar & Restaurant to consume beer and again asked beer from the counter. The person at the counter stated that the beer cost is Rs.55/-, though the cost of the beer is Rs.50/- and the person at the counter demanded Rs.5/- extra even though A1 revealed that he was the gunman of VIPs. On that there arose an altercation. While so, A2 caught hold of the injured tightly and A1 fired the deceased. Thereafter, some persons came and caught hold of him, then A1 fired in the air. Some persons caught hold of A1 and handed over to police and also handed over MOs.1 and 2. He identified MO 1 pistol and MO 2 shirt. 23. PWs 14 and 15 are the inquestdars. They stated that in their presence the Mandal Revenue Officer conducted inquest over the dead body of the deceased. 24. PW 16 is the Professor and Head of the Department in Forensic Medicine, Osmania Medical College, Hyderabad. He stated that he conducted post mortem examination over the dead body of the deceased Ganesh on 27.07.2004 in between 4.40 p.m. and 5.40 p.m and found the following ante-mortem injuries; 1. sutured wound with two sutures over left jaw 2 cms above the left angle of mandible on opening ¾ cms diameter; 2. sutured wound with two sutures over the back of right side of lower part of neck, 3 cms from the nape of the neck track connecting injury No.1 and to passing through and injuring the cervical spine and spinal cord. The cause of the death as per his knowledge was due to the fire arm injury to the cervical spinal cord. Ex.P6 is the post mortem report. Injury No.1 is the entry wound which is on the left cheek. 25. PW 17 is the Assistant Director of the State Forensic Science Laboratory, Hyderabad. He stated that he received the pistol with magazine, two empty rimless metallic cartridge cases, a deformed copper jacketed bullet and a rimless metallic cartridge in a sealed cover for examination and report. He examined the same and found that they are company made and 9 mm pistol fired well. He opined that item-1 pistol is company made calibre pistol and it fired previously and is in working order. Item-2 the empty 9 mm calibre rimless cartridge cases and item-3 the 9 mm calibre copper jacketed bullet were fired from item No.1, and item-4 the 9 mm calibre rimless cartridge is company made and live and items-1 to 4 come under the purview of Arms Act. Ex.P7 is his report. 26. PW 18, the Inspector of Police who investigated