HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.1543 OF 2007 Dated:19-07-2011 BETWEEN: Sk. Hymed …Appellant AND State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.1543 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice Raja Elango) Sole appellant was put on trial for the offence punishable under Section 302 I.P.C. By judgment dated 30.8.2007 in S.C.No.383 of 2006 on the file of IV Additional District & Sessions Judge (Fast Track Court), Nizamabad he was convicted for the offence under Section 302 I.P.C. and was sentenced to undergo imprisonment for life. 2. The gravamen of the charge against the appellant-accused is that on the intervening night of 12/13.8.2006 at 1.00 a.m. he committed murder intentionally causing the death of his wife-Aneesa Begum (hereinafter called as ‘deceased’). 3. The story of the prosecution as narrated during the course of trial is as under: Deceased is the wife of accused. P.W.1 is the father and P.W.3 is the cousin of deceased. P.W.2 is a relative of deceased. P.W.4 is the neighbour of accused. On 13.8.2006 at 1.00 p.m. P.W.1 lodged Ex.P.1 complaint before P.W.13-Sub-Inspector of Police, Nizamabad Rural Police Station stating that his elder daughter-deceased got married the accused, that after the marriage for some time they lived happily, that they came to Khanapoor and the accused was working in Mamidi Bajanna rice mill and also residing in the said quarters. Later the accused started to suspect the character of the deceased and used to ill-treat her. On 13.8.2006 his 4th son informed him over phone that the accused beat the deceased in his house and killed her. On that, himself and his wife came to the house of the deceased and found the dead body of the deceased in the quarters of Mamidi Bajanna rice mill. They found some injuries on her face. Basing on the complaint-Ex.P.1, P.W.13 registered a case in Crime No.267 of 2006 under Section 302 I.P.C. and issued Ex.P.11- F.I.R. P.W.14-Circle Inspector of Police took up investigation, recorded the statement of P.W.1, proceeded to the scene of offence, examined and recorded the statements of mother of deceased, P.W.2, P.W.3, P.Ws.5 to 9. He conducted inquest over the dead body of the deceased in the presence of P.W.11, 12 and another and prepared scene of offence panchanama-Ex.P.9 in the presence of mediators and sent the dead body for post-mortem examination. P.W.10-doctor conducted autopsy over the dead body of the deceased and issued Ex.P.7-post-mortem report. P.W.14 arrested the accused on the same day. After due investigation, he laid the charge sheet against the accused for the offence under Section 302 I.P.C. 4. To bring home the guilt of the accused, prosecution examined P.Ws.1 to 14 and marked Exs.P.1 to P.11. On behalf of defence, D.W.1 was examined but no documents were marked. 5. The learned Sessions Judge after appreciation of oral and documentary evidence convicted and sentenced the appellant-accused as aforementioned. 6. All the independent witnesses i.e. P.Ws.4 to 8 were declared hostile by the prosecution as they have not supported its case. The entire case of the prosecution is based on the evidence of P.Ws.4 and 9. As far as P.Ws.1 to 3 are concerned, on information about the death of the deceased, they rushed to the place of occurrence and saw the dead body of the deceased. Except that, they have not stated anything regarding the occurrence. They deposed with regard to the fact that the deceased and appellant are wife and husband. There is no dispute with regard to the same either by the appellant or by prosecution. Even though P.W.4 was treated hostile, in his deposition, he stated that on the fateful day at about 1.00 or 1.30 a.m. he woke up at the instance of neighbours and saw the dead body of the deceased and that the accused was present in the house. P.W.9, a private doctor deposed that the deceased was brought to his clinic by the accused along with two other persons, which also indicates that the accused was present at the time of occurrence. Further the entire occurrence was happened in the quarters established by a rice mill wherein the workers were residing. The appellant is also a worker in the said rice mill. The presence of the accused before the doctor immediately after the occurrence also establish his presence in the house at the time of occurrence. Therefore, we are of the opinion that the injuries sustained by the deceased are only in the hands of the appellant-accused. Thus the prosecution has established beyond all reasonable doubt that the death of the deceased is homicidal in nature by examining the doctor-P.W.10 who conducted the autopsy over the dead body of the deceased. 7. Now, the question remains before us is whether the homicidal death is amounting to murder. The evidence of P.W.10 coupled with Ex.P.7-post-mortem report, the deceased received the following injuries: “1) contusion over the left eye around peri-arbital area blockish 2) contusion over the chest left side 10x5 cms. 3) contusion over the forehead left side. 10x5 cms. 4) contusion over the scalp left side 10 x 5 cms.” He opined that the injuries caused to the deceased are possible by fall or by beating. Thus it is evident that no weapon was used by the accused to cause the said injuries. There is no visible external injuries except the contusions in the nature of laceration or incised wounds. It can also be presumed that the injuries caused by the accused to the deceased were due to a quarrel in between them. The said act of the accused is not pre-meditated one. The nature of the injuries also suggest that the accused has no intention to cause the death of the deceased but having knowledge that the injuries would sufficient to cause the death, he caused the said injuries. Thus the entire facts and circumstances and the evidence adduced by the prosecution squarely comes under the exception 4 of Section 300 IPC, which runs as under: “Exception 4:- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner.” Such an act even though it is culpable homicide will not amount to murder as per the exception 4. The said exception is punishable under Section 304-II, which runs as follows: “304. Punishment for culpable homicide not amounting to murder:- xxxxxx; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.” 8. In the present case, considering the nature of injury and the medical evidence and as the offence committed by the appellant is without any premeditated intention, he can be convicted for the offence under Section 304-II IPC, but the learned Sessions Judge erred in convicting him for the offence under Section 302 I.P.C. With regard to the sentence, it is on record that the appellant had already served the sentence for four years. 9. In the result, the appeal is allowed in part. The conviction and sentence imposed on the appellant-sole accused by IV Additional District & Sessions Judge (Fast Track Court) Nizamabad in S.C.No.383of 2006, dated 30.08.2007 are hereby set aside and he is found not guilty for the offence under Section 302 IPC. But he is convicted for the offence under Section 304 Part II I.P.C. and sentenced to imprisonment for the period already undergone by him. _______________ A. GOPAL REDDY. J _________________ RAJA ELANGO, J JULY 19, 2011 Tsr.