HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE V.SURI APPA RAO Criminal Appeal No.1271 of 2007 Date: 23-02-2011 Between The State of A.P., Rep. by the Public Prosecutor, High Court of A.P., Hyderabad … Appellant/Petitioner and Mohd. Asif and 5 others … Respondents/Accused HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE V.SURI APPA RAO Criminal Appeal No.1271 of 2007 Judgment: (per V.Suri Appa Rao, J.) The State represented by the Public Prosecutor filed this appeal under Section 378 (3) and (1) of Cr.P.C., against the judgment dated 02-3-2007 in Sessions Case No.493 of 2006 passed by the III Additional Metropolitan Sessions Judge, Hyderabad, whereby the respondents 1 to 6 herein, who are the accused 1, 2, 3, 5, 6 and 7, were acquitted under Section 235 (1) of Cr.P.C., for the offences under Sections 302, 307, 302 read with Section 34 of IPC and Section 307 read with Section 34 of IPC. 2. The case of prosecution, in brief, is as follows: The deceased M.A.Razak and accused No.6 are related to each other. The house bearing No.17-2-460, Kurmaguda is an ancestral house, which is in the name of the mother of accused No.6 late Smt. Ahmedi Begum and accused No.6 got the said house registered in his name. At the time of registration he gave Rs.30,000/- as share of his sister Smt. Zaheera Sultan, mother of P.W.1 Md.Hasan @ Khusro and also promised that he will pay some more money after the house is disposed of. One Md.Salauddin @ Afzal got issued a Public Notice about the proposed sale of the said house by accused No.6 to his daughter calling for objections, if any. On seeing the advertisement the deceased and his sons, P.Ws.1, 2 and 8, went to the house of accused No.6 and enquired about the advertisement, for which accused No.6 stated that he will pay money after the disposal of the house. Subsequently, on 26-12-2005 accused No.6 called the deceased over telephone and asked him to come to his house. Accordingly, the deceased, P.Ws.1, 2 and 8 went to the house of accused No.6 and thereafter some altercation took place and accused No.1 stabbed the deceased on his chest with a knife, as a result of which he received bleeding injuries. When he was shifted to the Osmania General Hospital, Hyderabad he was declared brought dead. Accused No.2 also attacked P.W.8 with a knife and caused bleeding injury on the right side of rib. P.W.14, Inspector of Police, Madannapet Police Station, Hyderabad received VHF information about the incident of stabbing at House No.17-2-460, Kurmaguda. He immediately rushed to the place of offence and came to know that there was a stabbing incident took place in which the deceased was stabbed by accused No.1 and the deceased was taken to the police station by P.W.10, Head Constable. He, therefore, posted the guard at the scene of offence. Later, he left the scene of offence and went to the police station and enquired about the presence of the injured and came to know that the injured was immediately shifted to the Osmania General Hospital, Hyderabad for treatment. He then rushed to the Osmania General Hospital and found P.W.1 in casualty ward along with the deceased. Thereafter he obtained a complaint from P.W.1 and made an endorsement on the complaint to register a case under Section 302 read with Section 34 of IPC and recorded the statements of P.Ws.1, 2 and 8 and others at the hospital. He also visited the scene of offence and drafted observation panchanama, rough sketch of the scene of offence in the presence of P.W.3 and one Md.Ali Khan. He conducted inquest over the dead body of the deceased and handed over the dead body to P.W.5 Dr. Ravinder Reddy, Professor, Forensic Science, Osmania Medical College, Hyderabad for conducting post-mortem examination. P.W.5 opined that the death of the deceased was due to stab injury to heart. On 28-12-2006 he arrested accused 1 to 4 and recorded the confessional statements of accused 1 and 2 in the presence of the mediators P.W.12 and one Mohd. Quader, and seized the butcher’s knife (M.O.1). He also seized another knife on the confession of accused No.2. Subsequently, on 01-01-2006 he arrested the other accused i.e., accused 5 to 7 and filed the charge-sheet after completion of investigation. 3. The learned III Additional Metropolitan Sessions Judge, Hyderabad framed charges under Section 302 of IPC against accused No.1, under Section 307 of IPC against accused No.2, under Section 302 read with Section 34 of IPC against accused 2, 3, 5, 6 and 7 and under Section 307 read with Section 34 of IPC against accused 1, 3, 5, 6 and 7. The accused pleaded not guilty for the said charges. 4. In order to bring home the guilt of the accused for the above charges, the prosecution examined P.Ws.1 to 14 and marked Exs.P-1 to P-11 and M.Os.1 to 16. The defence got marked Exs.D-1 to D-3 during the course of cross-examination of P.Ws.8, 10 and 13 respectively. 5. The prosecution examined P.Ws.3, 5 and 14 to prove that the death of the deceased as homicidal. P.W.3 Mohd. Amjadshah stated in his evidence that on 27-12-2005 he acted as a panch witness for the observation of the scene of offence and he was also present during inquest over the dead body of the deceased at the mortuary of Osmania General Hospital, Hyderabad. He attested Ex.P-4 inquest report. They opined that the deceased died due to stab injury. 6. P.W.5 Dr. M.Ravinder Reddy, Professor and Head of Department, Forensic Medicine, Osmania Medical College, Hyderabad has stated in his evidence that on 27-12-2005 he conducted autopsy over the dead body of the deceased Mohd. Abdul Razak and found a stab injury elliptical in shape, clean cut margins, sharp angles, 3 x 1 x 5 cms directed from left to right below upwards, front to back over the left side chest 1 cm to the left of the midline, just blow the sternum, 15 cm below the suprasternal notch, piercing the chest wall, pleural cavity and entering the right ventricle, one cm long and 1500 c.c. blood in the chest cavity. He is of the opinion that the deceased would appear to have been died of stab injury to the heart about 12 to 18 hours prior to his post-mortem examination. 7. P.W.14 the Inspector of Police, Madannapet Police Station also stated in his evidence that on 26-12-2005 he conducted inquest over the dead body of the deceased Mohd. Abdul Razak at Osmania General Hospital under Ex.P-4 inquest report. He also noted the injuries found on the person of the deceased and examined P.Ws.1, 2 and 8 and others during inquest. 8. Thus, by the evidence of P.Ws.3, 5 and 14, Ex.P-4 inquest report and Ex.P-6 post-mortem certificate, the prosecution could able to prove that the deceased died due to stab injury to the heart and that the death of the deceased was homicidal. 9. The next point for consideration is – whether the accused are responsible for causing the death of the deceased ? 10. The learned Public Prosecutor for the appellant/State submitted that the prosecution made out case against the accused for the offences under Sections 302 and 307 of IPC, Section 302 read with Section 34 of IPC and Section 307 read with Section 34 of IPC but the trial Court has not appreciated the evidence properly and disbelieved the evidence of the eyewitnesses including the evidence of P.W.8, who is an injured witness and the reasons assigned by the trial Court in acquitting the accused are unsustainable. The accused are, therefore, liable for punishment under Sections 302 and 307 of IPC for causing the death of the deceased Mohd. Abdul Razak and for attacking P.W.8. 11. On the other hand, learned counsel for the respondents/ accused submitted that the incident did not happen in the manner stated by the prosecution and that the prosecution suppressed the origin and genesis of the occurrence. Accused 2, 3, 4 and 5 are the sons of accused No.7. Accused No.4 was a juvenile by the date of offence and he was acquitted by the Juvenile Court. It is further submitted that the deceased and P.Ws.1, 2 and 8 and others gained entry into the house of accused No.6 only to dispossess him and there was a quarrel took place and in that, the accused also received injuries. It is further submitted that the evidence of the eyewitnesses about the incident is also not corroborated and they gave different versions and their evidence is not supported by Ex.P-1 FIR. It is further submitted that the deceased and his sons went to the house of accused No.6 during late night and picked up a quarrel and that the incident took place in a spur of moment. At the most, the offence alleged to have been committed by the accused comes under Section 304 Part II of IPC. 12. In support of his contention, learned counsel for the respondents/accused relied on the following decisions: (1) Jagtar Singh v. State of Punjab[1]. In this case, a quarrel took place on the spur of moment. The appellant never expected to meet the deceased. When the deceased was just passing by the road in front of the house of the appellant, his forehead dashed with the parnala of the house of the appellant which provoked the deceased to remonstrate the appellant and that there was exchange of words and at that time the appellant gave a blow with a knife which landed on the chest of the deceased. The Hon’ble Supreme Court, in such circumstances, held that there was no premeditation or malice. Sudden quarrel took place on spur of moment arising out of trivial reason on chance meeting of parties. A Young man caused single blow by a knife on the chest of the victim causing his death. Intention to cause death or causing particular injury could not be imputed to him but knowledge that he was likely to cause injury which was likely to cause death could however be inferred. The offence falls under Section 304, Part II of IPC and not under Paras 1 or 2 of Section 300 of IPC. (2) Tholan v. State of Tamil Nadu[2]. In this case also, the accused started remonstrations using filthy language against certain organizers of a chit fund who had no connection with the deceased in front of the house of the deceased and the deceased came out of his house and asked the accused to go away, the accused on spur of moment gave only one blow with knife to the deceased and pushed him to some distance. The Supreme Court held in the circumstances of the case that though requisite intention to commit murder could not be attributed to the accused, he wielded a weapon like a knife and therefore, he could be attributed with knowledge that he was likely to cause an injury which was likely to “cause death”. In such a situation though he could not be convicted under Section 302 of IPC, he would be guilty of committing an offence under Section 304, Part II of IPC. 13. According to the prosecution, the deceased Mohd. Abdul Razak, P.Ws.1, 2 and 8 went to the house of accused No.6 on 26-12-2005, where all the accused were present and there was an altercation between the accused and the deceased party. In the said altercation accused No.1 stabbed the deceased on his chest with a knife, as a result of which he received bleeding injury. Accused No.2 stabbed P.W.8 with a knife causing bleeding injury on his left side ribs. Admittedly, P.Ws.1, 2 and 8 are the sons of the deceased Mohd. Abdul Razak who witnessed the incident. Out of them, P.W.8 also received an injury in the same incident when accused No.2 attacked him. 14. P.W.1 Mohd. Hassan has stated in his evidence that the deceased Mohd. Abdul Razak is his father. On 26-12-2005 at about 12 midnight he along with his brothers P.Ws.2 and 8 accompanied by their deceased father went to the house of accused No.6 for collecting the amount due to them. All the accused were present and there was a quarrel. In that, accused No.1 stabbed his father with a knife on the left side of the chest causing bleeding injury. Accused No.2 stabbed his brother P.W.8 on the left side of the ribs causing bleeding injury. The other accused 2, 5 and 7 caught hold of his brother P.W.8 and pushed him. He also stated that one Amjad and other residents of the locality witnessed the incident. His father was immediately taken to Madannapet Police Station by P.W.8. He along with some others went to Yashoda Hospital, Malakpet and from them to Osmania General Hospital, Hyderabad and he came to know that at Osmania General Hospital his father succumbed to the injuries. Then he went to Madannapet Police Station and lodged Ex.P-1 complaint. He also stated that M.O.1 is the butcher’s knife with which accused No.1 stabbed his father and M.O.2 is another knife with which accused No.2 stabbed his brother P.W.8. In the cross-examination, he denied the suggestion that he was not an eyewitness to the incident and that no incident took place as spoken to by him. 15. P.W.2 Mohd. Hanief Ahmed Farooqui @ Khaled, another son of the deceased Mohd. Abdul Razak, has stated in his evidence that on 26-12-2005 at about 11 p.m., he accompanied his father, P.Ws.1 and 8 to the house of accused No.6 for collection of Rs.2,00,000/-, remaining amount towards their share in the ancestral property. But they have offered Rs.50,000/-. Then they all went to the house of accused No.6 as they were called by him on telephone. They found all the accused at the house of accused No.6. When the deceased demanded to pay Rs.2,00,000/-, accused No.6 offered only Rs.50,000/- and in that connection, there was a hot discussion. The accused then started scolding them and attacked them with hands. Accused 1 and 2 went into the house and brought knives and when accused No.1 tried to stab P.W.1, their father intervened and the blow fell on his left side of the chest causing bleeding injury. Accused No.2 stabbed P.W.5 on the right side of the ribs and caused bleeding injury. He also stated that the remaining accused pushed their father from out of the house. Himself, P.Ws.1 and 3 and others witnessed the incident. He further stated that in the meanwhile, Police came to the scene of offence. His father and P.W.8 went to the police station in an auto. He along with P.W.1 went to Osmania General Hospital and came to know that his father died due to injury. In the cross-examination, he denied the suggestion that he did not state about the presence of accused 2, 3, 5 and 7 and that they were falsely implicated. 16. P.W.8 Mohd. Hafeez Ahmed Farooqui @ Khaleq, another son of the deceased who also received injuries in the same incident, has stated in his evidence that on 21-11-2005 they found a public notice about the proposed sale of the house by accused No.6 in Urdu Daily Siasat Newspaper and when they questioned accused No.6, he asked them to come to his house on the night of 26-12-2005. Accordingly, on 26-12-2005 at about 11 p.m., he along with his brothers P.Ws.1 and 2 accompanied by their father went to the house of accused No.6. There accused 1 to 7 were present. When they demanded payment of money in connection with the house, they refused to pay and started scolding them. All of a sudden accused No.1 took out a knife from his pant pocket and stabbed their father on the left side of the chest. Accused No.2 also tried to stab their father with a knife and when he intervened, the blow fell on his right side ribs below the armpit causing bleeding injury. The other accused dragged his father from out of the house. Immediately he took his father in an auto to the police station. The Police sent them to Osmania General Hospital for treatment. On seeing their father, the doctors declared him as brought dead. He was also treated by the doctor in casualty ward for his injury. In the cross-examination, he denied the suggestion that they went to the house of accused No.6 to dispossess accused No.7 and his sons from the said house and in that process, accused 2 and 3 also received injuries. 17. P.W.4, a Police Constable attached to Madannapet Police Station, has stated in his evidence that on 26-12-2005 at about 11 p.m., while he was at out-post, Kurmaguda some passers-by informed him that one injured was lying in front of the house bearing No.17-2-460, Kurmaguda. On receiving the said information he along with Head Constable proceeded to the spot and noticed one person lying with injuries on the road. Immediately they took the injured in an auto to the police station. Among the persons that were present, some were assaulting a person and that he intervened and sent that person into the house. The evidence of P.Ws.1, 2 and 8 shows that they followed their deceased father Mohd. Abdul Razak to the house of accused No.6 for collecting the amount due to them and then there was a quarrel. In that quarrel, the accused abused the deceased and his sons and accused No.1 stabbed the deceased on the left side of the chest. P.W.1 has clearly stated that accused No.1 stabbed the deceased on the left side of the chest and caused a bleeding injury, whereas P.W.2 also stated that accused No.1 stabbed the deceased on the left side of the chest. But his evidence shows that when accused No.1 tried to stab P.W.1 the blow fell on the left side chest of the deceased, which was not stated by P.W.1. The evidence of P.W.2 further shows that accused No.2 stabbed P.W.8 on the left side of the ribs and caused bleeding injury. 18. P.W.8 also clearly stated that accused No.1 took out a knife and stabbed his father on the left side of the chest and when accused No.2 tried to stab his father, he intervened and the blow fell on the right side ribs below to the armpit. It was suggested to P.W.8 that the deceased, P.W.8 and other family members of the deceased went to the house of accused No.7 to dispossess accused No.7 and his sons from the house, which was denied by P.W.8. Therefore, it is clear from the above suggestion that P.W.8 was present at the time of incident at the house of accused No.6 and received injury. 19. P.W.14 the Investigating Officer also stated in his evidence that by the time he went to Osmania General Hospital he found the injured declared as dead. He also found P.W.8 taking treatment in the Osmania General Hospital. 20. Though there are some discrepancies in the evidence of P.Ws.1 and 2 about accused No.1 first attempting to stab P.W.1 and when the deceased intervened he received injury on the left side of the chest. The fact remains that during the quarrel accused No.1 brought a knife and stabbed the deceased on the left side of the chest. The evidence of P.W.8 clearly shows that immediately after the incident the deceased and P.W.8 were taken to the police station and when the condition of the deceased was critical they were sent to Osmania General Hospital, the doctor declared the deceased as brought dead and that P.W.8 took treatment in the same hospital by the time P.W.14 the Investigating Officer visited the scene of offence. 21. The evidence of P.W.4 Police Constable clearly indicates that by the time he went to the scene of offence to the injured was there on the road with injuries and some persons were assaulting a person. It is, therefore, clear from the evidence of P.W.4 that even after stabbing the deceased the quarrel between the accused and the sons of the deceased continued for some time. Therefore, P.W.1 could able to reach Osmania General Hospital after the deceased and his brother P.W.8 were shifted to Osmania General Hospital. There, he lodged a complaint with P.W.14 Inspector of Police, who came there. Therefore, the presence of P.Ws.1, 2 and 8 at the scene of offence cannot be doubted. Their evidence clearly indicates that accused No.1 inflicted injury on the left side of the chest of the deceased with a knife, due to which the deceased Mohd. Abdul Razak succumbed to the injury. 22. Admittedly, the incident took place in a sudden quarrel when the deceased and his sons went to the house of accused No.6 and demanded the amount due to them. It is also an admitted fact that accused No.1 caused single blow with a knife on the chest of the deceased and caused his death. As can be seen from the evidence of the prosecution witnesses, accused No.1 had no intention to cause death or particular injury. The incident took place on spur of moment and there was no premeditation or malice prior to the incident. The incident took place only when the deceased and his sons went to the house of accused No.6 for demanding the amount due to them. Unfortunately, the deceased died due to the sole injury to the left side of his chest inflicted by accused No.1 with the knowledge that he was likely to cause an injury which was likely to cause death. Therefore, accused No.1 would be guilty for the offence under Section 304, Part II of IPC but not under Section 302 of IPC. Accused No.1 is, therefore, liable for punishment under Section 304, Part II of IPC. 23. So far as the other accused 2, 3, 5, 6 and 7 are concerned, the trial Court framed charges under Section 307 of IPC against accused No.2, under Section 302 read with Section 34 of IPC against accused 2, 3, 5, 6 and 7 and under Section 307 read with Section 34 of IPC against accused 1, 3, 5, 6 and 7. As already discussed above, the incident took place in a spur of moment and accused No.1 dealt a single blow with a knife on the left side chest of the deceased. The prosecution alleged that accused No.2 stabbed P.W.8 on the right side ribs below the armpit and caused bleeding injury. P.W.8 stated in his evidence that when accused No.2 tried to stab his father he intervened and the blow fell on the right side ribs below the armpit. His evidence further shows that himself and the deceased immediately went to the police station and from there they were shifted to Osmania General Hospital and the doctor declared the deceased brought dead and that he took treatment in casualty ward for his injury. P.W.14 the Investigating Officer also stated that by the time he reached Osmania General Hospital he found the dead body of the deceased and also found P.W.8 taking treatment in the same hospital. But the prosecution failed to examine to the Medical Officer who treated to the injuries found on the person of P.W.8 and also did not care to file any wound certificate to prove the injury sustained by P.W.8 in the incident. Admittedly, the deceased and his sons went to the house of accused No.6 and there was an altercation between the accused and the deceased and his sons. During the quarrel accused No.1 caused an injury on the left side chest of the deceased. The prosecution failed to produce any kind of evidence to prove that there was premeditation or malice on the part of the accused to kill the deceased and to attempt to kill P.W.8. Accused 1, 3, 5, 6 and 7 are, therefore, not liable for punishment for the offence under Section 307 read with Section 34 of IPC. As the accused 2, 3, 5, 6 and 7