Shaik Haji, Nizamabad Dt. vs State Of AP.

This Criminal Appeal is filed against the Judgment and decree dated 28.10.2013 in S.C.No.88 of 2013 passed by the learned Sessions Judge, Nizamabad.

The case of the prosecution as per the complaint given by the son of the deceased Zaithun Begum, under Ex.P1 is that his brother Shaik Haji hacked his mother to death with axe and ran away from that place. His younger brother Ahmed Hussain, who was working at Mumbai, used to send money to his mother for livelihood and accused was insisting his mother to give that money. When she refused to give to him, accused developed grudge against her and hacked her to death. On receiving the complaint on 11.07.2011 at about 2:30 PM, police registered a case in Cr.No.84 of 2011 under Section 302 of IPC.

To prove the guilt of the accused, prosecution examined P.Ws.1 to 13 on their behalf and marked ExsP1 to P12 and also marked M.Os.1 to 6. The trial Court after considering the oral and documentary evidence, convicted the accused under Section 235(2) of Cr.P.C for the offence punishable under Section 302 IPC and sentenced him to undergo R.I for life and to pay a fine of Rs.1,000/-, in default to suffer S.I for three months. Aggrieved by the said Judgment and decree, accused preferred the present appeal.

The learned Counsel for the accused mainly contended that P.Ws.1 to 4 are interested witnesses and there are discrepancies in the Judgment. Ex.P1 was brought into existence after due deliberations to implicate the accused falsely, though the deceased was attacked by some unknown persons. The delay in filing F.I.R is not explained properly. The medical evidence does not fit into the prosecution case. As per the evidence of P.Ws.2 to 4, accused attacked the deceased with an axe, but as per the medical evidence of P.W.12, injuries No.1 and 2 could have been caused by two different sharp objects and the offence would not fall within the ambit of Section 302 of IPC and the reasons stated by the trial Court are not sustainable. Therefore, requested the Court to set aside the Judgment of the trial Court.

Heard arguments of both the Counsel and perused the entire evidence on record.

P.W.1 in his evidence stated that accused is his brother and he is having three brothers and one sister. Accused is the third son of his mother and he is eldest and his sister is the last one. The house of his mother was situated besides his house. He further stated that on the date of incident, on hearing hue and cry of P.W.2, he came out of his house and found his mother in a pool of blood and then P.W.2 informed him about the incident. The offence took place at about 1:00 PM and by 2:00 PM, he reached the police station. He was illiterate, as such one Shankar scribed Ex.P1 complaint. He affixed his thumb impression on the report. In his Cross-examination, he stated that all the brothers and mother were residing separately. The house of his mother was at a distance of 10 yards from his house.

P.W.2 is the eye-witness to the occurrence and she is the daughter-in-law of the deceased. She stated about the presence of P.W.4 at the place of occurrence. She further stated that when she went there to call her mother-in-law for lunch, accused came with an axe and hacked the deceased on her head and also on the back side of head. When she made hue and cry, P.W.1 came out of the house and offered water to his mother, but the deceased fell down and then she informed about the incident to P.W.1. She also stated that her brother-in-law was sending money to her mother-in-law.

P.Ws.3 and 4 are independent witnesses. P.W.3 stated that he was attending the work of laying country tiles and he has seen the accused beating his mother twice with axe. P.W.4 also stated that she has witnessed the accused hacking his mother and stated that he hacked his mother twice with axe on her head and on her neck. The argument of the appellant Counsel is that the trial Court relied upon the interested testimony of P.Ws.1 and 2, but P.Ws.3 and 4 are independent witnesses.

P.W.5 is the photographer. He stated that on instructions of C.I of Police, Bichkunda, he took the photographs of the deceased and the same were marked under Ex.P2 along with C.D. P.W.6 is the son of the deceased, who was sending money to the deceased for her maintenance. He stated that he came after receiving the information of the death of his mother and seen the dead body in mortuary. P.W.7 found the accused near rice mill and informed to the police at about 4:00 PM. P.W.8 stated that when the wife of the accused was in her house, accused called his wife and informed that he hacked his mother and she has heard the same. It was suggested to her that the wife of accused was not present in her house on that day and she is a planted witness, but she denied it.

P.W.9 is the panch witness to the scene of offence panchanama and to the inquest panchanama. He stated that police collected blood stained earth and control earth at the scene of offence situated near the house of P.W.4 and prepared sketch map and the same was marked under Ex.P4. He had also signed on the inquest panchanama and the same was marked under Ex.P5 and M.Os.1 to 5 were seized in his presence. P.W.10 is the V.R.O of Takkadpally Village of Bichkunda Mandal. The confession of accused was recorded in his presence and at the instance of accused, M.O.6 axe was seized under Ex.P6(a). P.W.11 is the Inspector of Police, who received Ex.P1 from P.W.1 and registered F.I.R under Ex.P7 and he had sent the copies of F.I.R to his superior officers. In his Cross-examination, he stated that the distance between P.S.Bichkunda to Court is about 1 K.M. It was suggested to him that earlier report lodged with him was suppressed and after deliberations with P.W.1, he took Ex.P1, but he denied it.

P.W.12 is the Doctor, who conducted autopsy over the dead body of the deceased. He mentioned the nature of injuries in detail in his evidence and stated that injuries No.1 and 2 are sufficient to cause death. The cause of death was Cerebral Hemorrhage caused by injuries No.1 and 2 and gave Postmortem examination report under Ex.P8. He also stated that injuries under Ex.P8 are possible with M.O.6, but in the Cross-examination, he stated that injuries No.1 and 2 may be caused by two different sharp objects. Considering his evidence, the learned Counsel for the appellant contended that the Doctor who conducted Postmortem examination stated that injuries were caused by two different objects, but as per the evidence of P.Ws.1 to 4, accused hacked his mother twice on her head and on neck with the same axe and thus there was variation in ocular and medical evidence and thus prosecution failed to prove the guilt of the accused beyond reasonable doubt. The Doctor himself stated that injuries discussed in the Postmortem examination are possible with M.O.6/axe. When it was suggested whether they are possible by two different sharp objections, he answered the same in the Cross-examination. Therefore, the argument of the appellant Counsel is not tenable. P.W.13 is the Investigation Officer, who conducted entire investigation and filed Charge sheet.

The motive for the offence is that younger brother of the accused used to pay Rs.1,000/- or Rs.500/- to his mother for her maintenance. The accused was residing to the side of her house and insisted her to give money, when she refused, accused hacked her to death. P.W.6 was examined to prove the motive and P.W.2 is the eye-witness to the occurrence. She clearly stated that accused hacked her mother-in-law to death with axe and immediately she informed the same to P.W.1. P.Ws.3 and 4 are independent witnesses who are present at the time of occurrence and they deposed consistently regarding the manner of death. There is no dispute regarding the weapon used in the offence and it was seized at the instance of the accused in the presence of P.W.10. The Doctor, who conducted Postmortem stated that injuries caused are possible with the weapon seized under M.O.6. The trial Court considering the entire evidence of all the witnesses convicted the accused for the offence under Section 302 of IPC.

The learned Counsel for the accused submitted that accused was in jail for a period of 9 years 1 month 1 day as on 26.11.2022 and his conduct was good. He further relied upon the decision of the Hon’ble Apex Court in the case of Khokan alias Khokhan Vishwas Vs. State of Chhattisgarh AIR 2021 SCC 939, in which it was held as follows:

Section 300 of IPC is in two parts. The first part is when culpable homicide can be said to be the murder and the second part is the exceptions when the culpable homicide is not murder. The relevant part of Section 300 IPC for our purpose would be clause 4 to Section 300 and exception 4 to Section 300 IPC. As per clause 4 to Section 300 IPC, if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury, such culpable homicide can be said to be the murder. However, as per exception 4 to Section 300, 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 having taken undue advantage or acted in a cruel or unusual manner. As per explanation to exception 4 to Section 300 IPC, it is immaterial in such cases which party offers the provocation or commits the first assault. He further stated that there is no evidence that there was premeditation on the part of the accused and the number of wounds caused during the occurrence is also not a decisive factor, but what is important is that the occurrence must have been sudden and unpremeditated, and the offender must have acted in a fit of anger.

The necessary requirements applicable for Section 304 – II is that if the act is done with knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death, the punishment is imprisonment of either description for a term which may extend to 10 years, or with fine, or with both. The accused herein has already completed 10 years of sentence. Therefore, this Court finds that it is just and reasonable to modify the sentence as the period already undergone by him.

In the result, the Criminal Appeal is partly allowed by converting the conviction and sentence passed by the trial Court against the accused for the offence punishable under Section 302 of IPC, by Judgment and decree dated 28.10.2013 in S.C.No.88 of 2013 to the sentence already undergone by the appellant/accused and he shall be set at liberty forthwith, if he is not required in any other case. M.Os.1 to 6 shall be destroyed after the expiry of appeal time.

Pending miscellaneous petitions, if any, shall stand closed.