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Judgment
Crl.A.No.1148 of 2011 is filed by the defacto complainant against the inadequacy of sentence and also acquittal of accused No.2 in S.C.No.179 of 2010 on the file of I-Additional Metropolitan Sessions Judge, Hyderabad.
Crl.A.No.1049 of 2011 is filed by the appellant/accused No.1 against conviction in S.C.No.179 of 2010 on the file of I Additional Metropolitan Sessions Judge, Hyderabad, vide judgment dated 06.09.2011, he was convicted and sentenced to undergo imprisonment for a period of five years and to pay a fine of Rs.1,000/- in default of payment of fine, to undergo simple imprisonment for six months for the offence punishable under Section 304 Part-II of the Indian Penal Code (for short ‘IPC’). As both the appeals arise out of the same judgment, they are disposed of by this common judgment.
Heard Sri Syed Mounis Jafer Abidi, learned counsel appearing for the appellant/defacto complainant in Crl.A.No.1148 of 2011, Sri Mohd. Muzafferullah Khan, learned counsel appearing for the appellant/accused No.1 in Crl.A.No.1049 of 2011 and Sri T.V.Ramana Rao, learned Additional Public Prosecutor appearing for the respondent-State.
Learned counsel for the appellant/defacto complainant would submit that the evidence on record is sufficient to prove the guilt of accused Nos.1 and 2. Pws.1 and 2 are the eye witnesses to the incident, but without considering their evidence with regard to involvement of accused No.2, the trial Court wrongly acquitted him holding that there is no mention about accused No.2 by the victim. Further, though there is ample evidence to prove the intention to commit the offence as the accused No.1 has borrowed an amount of Rs.8,000/- from the deceased and when he asked for repayment, he bet the deceased and deceased died due to the injuries. Accused No.1 was convicted for the offence under Section 304 Part-II of IPC. As such, prayed the Court to convict accused Nos.1 and 2 for the offence under Section 302 of the IPC.
Learned counsel for the appellant/accused No.1 would submit that the evidence on record is not sufficient to convict the accused and there are discrepancies in the evidence. He further contended that the scene of offence itself is not proved by the prosecution properly and there is no chance to witness the incident by Pws.1 and 2 and wrongly believing their evidence convicted the accused No.1 for the offence under Section 304 Part II of IPC which is not tenable. Hence, prayed the Court to allow the appeal by acquitting the accused No.1.
Though summons are ordered to be served on accused No.2 who is acquitted by the trial Court, they are not served and inspite of giving open warrant, his whereabouts are not traced out. Therefore, this Court appointed Mr. P. Prabhakar Reddy as Amicus curiae for accused No.2. Learned counsel appearing for accused No.2 would submit that there is no reference of name accused No.2 in the complaint given by the deceased himself and the same is observed by the trial Court. Therefore, there is no case against accused No.2 and there is no need to interfere with the judgment of trial Court with regard to acquittal of accused No.2.
[[7. The facts of the case are that Accused No.1 has taken hand loan of Rs.8000/- from the deceased-Mohd. Iftequar Ali @ Jaweed for the purpose of his sister’s marriage but he could not repay the same. The deceased was insisting for repayment of the said loan amount. As such, accused No.1 decided to eliminate the deceased with the help of accused No.2. On 19.05.2019 at about 3.45 a.m., accused No.1 called the deceased to come over to Riyasath Bhai Ka Bada, Yakuthpura, Hyderabad. Immediately, the deceased reached that place and demanded accused No.1 to repay the amount. Then accused No.1 along with accused No.2 attacked the deceased with a stick, accused No.2 caught hold the hands of deceased, accused No.1 beat the deceased with a stick on his head and all over parts of the body, due to which the deceased received bleeding injuries. In the scuffle accused No.1 also sustained injury on his head. The deceased and accused No.1 went to the police station and they were sent to Osmania General hospital for treatment. Both of them were treated as outpatients. Case and counter cases were registered and deceased was again admitted in Gandhi Hospital, Secunderabad on 20.05.2009 for treatment to his injuries and while undergoing treatment, he died on 22.05.2009 at 16.00 hours. Basing on the same, the report was altered to Section 302 r/w.Section 34 of IPC and after investigation charge sheet was filed against accused Nos.1 and 2.
To prove the case, prosecution examined Pws.1 to 12 and got marked Exs.P.1 to P.21 and M.Os.1 to 6 were marked.
Basing on the evidence on record and after hearing both sides the trial Court acquitted accused No.2 and convicted accused No.1 for the offence punishable under Section 304 Part II of IPC.
Now, the points that arise for consideration are :
Whether the prosecution is able to prove the offence under Section 302 of IPC against accused Nos.1 and 2 ?.
Whether the judgment of the trial Court needs any interference ?
POINT NOs.1 AND 2 :
Pw.1 is the father of deceased and he deposed that on 19.05.2009, when he was in his house at about 4.00 a.m., he heard hue and cry from the back side of his house. Then himself, his wife and his grandson came out of the house and noticed his son and accused No.1 were quarrelling. Then he questioned them and tried to pacify them. Accused No.2 caught hold of the deceased and accused No.1 beat the deceased with a stick on the left side of his head. During that altercation, accused No.1 fell on a stone and sustained injury. Then both the accused ran away by taking stick along with them. When Pw.1 was proceeding to take his son to hospital, Rakshak Police jeep came and his son was taken to hospital in that jeep. After taking treatment, his son went to the police station at 9.00 a.m and gave report. Again on 19.5.2009 as the condition of his son became bad, he was admitted in Gandhi Hospital, Secunderabad and on 22.05.2009 the deceased died while undergoing treatment.
Pw.2 is the grandson of Pw.1. His evidence is that on 18.05.2009 he went to the house of Pw.1, as his grandmother was suffering from ill-health he stayed in their house. On the next day at about 4.00 a.m., Pw.1 and his grandmother woke him up and informed that some sounds were coming. At that time, himself, Pw.1, Lw.2- wife of Pw.1 and Lw.4-Mohd. Zulfeqar Ali brother of the deceased went out of the house to see what was happening, then they noticed quarrel between the deceased and accused No.1, they tried to separate them. Accused No.2 caught hold of the hands of deceased and accused No.1 beat the deceased with a stick on his head. When they tried to catch both the accused, they fell down. Thereafter accused Nos.1 and 2 ran away with the stick and deceased was shifted in Rakshak police jeep to the hospital. He also accompanied the deceased to the hospital, where he was treated as an outpatient. Later the deceased was taken to the police station and complaint was lodged to the police and at that time he was also present. Subsequently, deceased died on 22.05.2009.
Pws.3 and 4 are the panch witnesses for scene of offence panchanama and inquest panchanama. Pw.5 is the panch for confession leading to recovery has not supported the case of prosecution.
Pw.6 is the ASI who received complaint from the deceased on 19.05.2009 and handed over the same to Pw.7 and Pw.7 basing on the complaint registered a case under Section 324 of IPC.
Pw.8 is the mediator for confession panchanama has not supported the case of prosecution. Pw.9 is the medical officer who conducted autopsy over the dead body of deceased. According to him, there are nine injuries on the dead body of the deceased which are ante mortem. He opined that injury Nos.7 to 9 can be caused with M.O.1 stick. In cross-examination he deposed that injury No.1 and 2 are related to operation conducted on the deceased and according to him deceased died due to the head injury and injuries 7 to 9 are fatal in nature.
Pw.10 is the Sub-Inspector of Police. His evidence is that he took up investigation in this case on 19.05.2009 and examined Pws.1 and 2. On 20.05.2009 at about 11.45 hours, he arrested accused No.1 at his house, produced him before the Court for sending him to judicial remand. On the same day he received information that deceased who was in the hospital was in serious condition, he went to the hospital and saw the deceased in unconscious state. Subsequently, he came to know that the deceased succumbed to the injuries.
Pw.12 who is the investigating officer deposed that he took up investigation from Pw.10 as the inspector of police was on leave. As the injured died in the hospital, he altered the section of law from Section 324 to 302 of IPC, verified the investigation done by Pw.10 and took up further investigation. He further deposed that he visited the Gandhi Hospital, conducted inquest over the dead body of deceased, prepared inquest report, sent requisition for conducting autopsy over the dead body of deceased and after autopsy handed over the same to his relatives. On 23.05.2009 he conducted scene of offence panchanama in the presence of mediators, prepared rough sketch of the scene, seized the clothes of the deceased under cover of panchanama Ex.P.18. On 27.05.2009 he arrested accused No.1 after filing an application for cancellation of bail in view of alteration of section of law from Section 324 to 302 IPC, recorded confession statement of accused No.1. Accused No.1 confessed to have committed the offence and at his instance recovered M.O.1 near the place in the backside of Ali Café. Thereafter seized blood stained clothes of the accused No.1. On 30.05.2009 accused No.2 was arrested and he was produced before the Court and sent to judicial custody and later handed over the case to Pw.11.
As seen from Ex.P.9 complaint given to Pw.6 the deceased stated that accused No.1 has taken Rs.8,000/- from him as hand loan for his sister’s marriage. On the date of incident, in the early hours at about 4.00 a.m., the accused No.1 called him to come to his house. When he went there, accused No.1 beat him with a stick on his head and he sustained bleeding injury to his head, that he also sustained injury to his face on hands and requested the police to take action against accused No.1. He has also stated that he has already taken treatment in Osmania General Hospital and was treated as M.L.C.14591, whereas deceased has not stated the name of accused No.2 in his complaint. He has not mentioned the involvement of accused No.2 as alleged by Pws.1 and 2.
Pws.1 and 2 deposed about presence of accused No.2 at the scene of offence, according to them, accused No.2 caught hold the deceased and accused No.1 beat him with a stick on his head, the same was not stated by the deceased in his complaint and there is no other evidence against accused No.2. Therefore, there is no illegality in the finding of the trial Court with regard to involvement of accused No.2 and acquitting him.
As per the case of prosecution, both accused No.1 and deceased received injuries in the said incident and deceased filed case against accused No.1 as a counter case. But the evidence of investigating officer is silent on this aspect.
The contention of learned counsel for the accused No.1 is that the scene of offence as stated by the witnesses is different from Exs.P.2 and P.3. Except the evidence of Pws.1 and 2 who are interested witnesses, there is no other evidence on record to show that the deceased was beat by accused No.1. No dying declaration was recorded and according to Pws.1 and 2, the incident took place near their house and as per the investigating officer, the scene of offence is away from the house of Pws.1 and 2. Pws.1 and 2 are planted witnesses and their evidence itself is contradictory. He further submitted that prosecution failed to prove recovery of M.O.1, as the panch witness turned hostile to the prosecution case.
Admittedly, accused No.1 and deceased are relatives. Further Pw.1 deposed about the occurrence of the incident and how the incident occurred. Pw.2 also deposed on the same lines as that of Pw.1. Except Pws.1 and 2 there are no other eye witnesses to prove the disputes between accused No.1 and deceased and commission of offence by accused No.1.
As per Ex.P.1 complaint which is given by the deceased himself stating that accused No.1 beat him with a stick on his head, which is relevant under Section 32 (1) of the Evidence Act. It is as good as dying declaration. The contention of the learned counsel for the accused No.1 is that there are discrepancies with regard to scene of offence and the evidence of Pws.1 and 2 cannot be taken into consideration, as the presence of accused No.2 is not stated by the deceased himself which falsifies the entire statement.
The first contention is with regard to the scene of offence. Learned counsel for the appellant vehemently argued with regard to the discrepancies about the scene of offence. Pw.12 prepared Ex.P.3-rough sketch of the scene of offence in the presence of Pw.3 and Lw.7. Learned counsel for A.1 and A.2 in the trial Court cross-examined Pw.12 about the scene of offence. Pw.12 admitted that Pws.1 and 2, not stated to him that the incident took place at Riyasath Bhai Ka Bada. Further, Pw.1 was also cross-examined in this context and he admitted that in scene of offence, his house was not shown, whereas he denied that his house is not there at scene of offence. Merely not showing the house of Pw.1 in Ex.P.3 does not falsifies the scene of offence panchanama. That apart the evidence of Pws.1 and 2 and Pw.12 is corroborating with each other that the incident occurred near the house of Pw.1 and as shown in Ex.P.3. Pw.10 was also cross-examined at length with regard to the scene of offence, whereas Pw.10 deposed that the locality where the accused No.1 is residing and place of offence are side by side and they are nearby localities located in a distance of one furlong. As such, the contention of learned counsel for the accused No.1 with regard to the scene of offence has no merit.
The second contention is that Pws.1 and 2 are interested witnesses. As such, their evidence cannot be considered. Going through the said contention, relationship is not a factor to effect credibility of a witness which is accepted by the Apex Court in catena of decisions. Merely because the witnesses were closely related to the deceased person, their testimony cannot be discarded. Their relationship to one of the parties is not a factor that effects the credibility of a witness, more so, a relation would not concede the actual culprit and make allegation against an innocent person. Therefore, just because Pws.1 and 2 are close relatives to deceased, their evidence cannot be discarded.
Pw.6 is the constable to whom deceased gave complaint and also recorded the statement of deceased under Ex.P.9. Pw.6 was also cross examined by the defence counsel at length but nothing was elicited in favour of accused.
The evidence of Pw.3 is also supporting the prosecution case about the scene of offence and occurrence of the incident at that place. Further the evidence of Pws.1 and 2 coupled with the evidence of Pw.6 proves that the appellant/accused No.1 killed the deceased on the date of incident under the guise of repayment of amount, there was a quarrel between them, accused No.1 beat the deceased on his head with a stick and deceased die due to the said injury on 22.05.2009.
Learned counsel for the appellant/defacto complainant would submit that A.1 could have been convicted for the offence under Section 302 of IPC, whereas the trial Court erroneously convicted A.1 for the offence under Section 304 Part-II of IPC. To prove the offence under Section 302 of IPC, the prosecution has to prove three ingredients. They are :
(1) That the death of a human being has actually taken place.
(2) That such death has been caused by, or in consequence of the act of the accused.
(3) That such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death; or
That the accused caused death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.
Learned counsel for the appellant/A.1 relied on the judgment in Khuman Singh and others Vs State of Madhya Pradesh 2005 (1) ALT (Crl) 166 (SC), wherein the Hon’ble Supreme Court in Paragraph No.11 held as under :
“The question then is under which provision of the IPC the appellants should be punished. Counsel for the State submits that even if the case does not fall under Section 300 “thirdly” IPC it would certainly fall under Section 304 Part II IPC. Even if we say that the appellants had no intention to cause death they certainly knew that such bodily injury was likely to cause death. He, therefore, submits that even if the appellants may not be found guilty of culpable homicide amounting to murder, they are certainly guilty of culpable homicide not amounting to murder punishable under Section 304 Part II IPC.”
Learned counsel for the also relied on another judgment in Satish Narayan Sawant Vs State of Goa 2010 (1) ALD (Crl) 626 (SC), wherein the Hon’ble Supreme Court held as under :
“35. Section 299 and Section 300 IPC deals with the definition of culpable homicide and murder respectively. Section 299 defines culpable homicide as the act of causing death; (i) with the intention of causing death, or (ii) with the intention of causing such bodily injury as is likely to cause death, or (iii) with the knowledge that such act is likely to cause death. The bare reading of the section makes it crystal clear that the first and the second clauses of the section refer to intention apart from the knowledge and the third clause refers to knowledge alone and not intention. Both the expressions “intent” and “knowledge” postulate the existence of a positive mental attitude which is of different degrees. The mental element in culpable homicide i.e. mental attitude towards the consequences of conduct is one of intention and knowledge. If that is caused in any of the aforesaid three circumstances, the offence of culpable homicide is said to have been committed.
Section 300 IPC, however, deals with murder although there is no clear definition of murder provided in Section 300 IPC. It has been repeatedly held by this Court that culpable homicide is the genus and murder is species and that all murders are culpable homicide but not vice versa. Section 300 IPC further provides for the exceptions which will constitute culpable homicide not amounting to murder and punishable under Section 304. When and if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II.”
In view of the above judgment and having regard to the evidence on record, it can be held that prosecution proved the guilt of accused No.1 for the offence under Section 304 Part-II of IPC. As such there are no infirmities in the judgment of the trial Court. Accordingly, point Nos.1 and 2 are answered.
IN THE RESULT, Crl.A.No.1148 of 2011 is dismissed as there are no infirmities in the judgment of the trial Court with regard to involvement of accused No.2. Crl.A.No.1049 of 2011 is also dismissed confirming the judgment in S.C.No.179 of 2010 on the file of I-Additional Metropolitan Sessions Judge, Hyderabad. The appellant/accused No.1 is directed to surrender before the trial Court within fifteen days from today, for serving out the remaining sentence. In case, the appellant/accused No.1 fails to surrender, the trial Court shall take steps to secure the presence of accused No.1 for serving out the remaining sentence.
Miscellaneous applications, if any, pending in these Criminal Appeals shall stand closed.