THE HONOURABLE DR. JUSTICE G.RADHA RANI
AND
THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY
CRL.A.No.247 OF 2014
JUDGMENT: (Per the Hon'ble Sri Justice A.Santhosh Reddy)
This appeal arises out of the judgment dated 29.11.2013 in
S.C.No.651 of 2012, on the file of I-Additional District and
Sessions Judge, Ranga Reddy District-cum-Metropolitan Sessions
Judge, Cyberabad, at L.B.Nagar, Hyderabad, whereby the
appellant-A-1 was convicted for the offence punishable under
Sections 302 and 324 IPC and sentenced to undergo rigorous
imprisonment for life for the offence punishable under Section 302
IPC and rigorous imprisonment for one year for the offence
punishable under Section 324 IPC. A-2 and A-3 were acquitted for
the offences punishable under Sections 302 and 324 read with
Section 34 IPC.
2. The case of the prosecution, in brief, is that on the
intervening night of 15/16.03.2012 at about 10:30 p.m.,
P.Ws.1 and 2 were returning to their house after attending a
function. On the way, when they reached Madina Masjid Dargah,
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Hassan Nagar, A-1 to A-3 were present on the road. On seeing
them, P.W.1 honked the horn so that they may give way to their
scooter. A-1 to A-3 stopped the scooterists and picked up quarrel
with them as to how they can honk the horn. While the altercation
was going on, one Jahangir Athoulla (hereinafter referred to as
'the deceased') went there and tried to pacify, upon which A-1
stabbed him firmly twice on his left chest, as a result of which
he received severe bleeding injuries. When P.W.1 tried to
rescue the deceased, he too was stabbed on the left side of his
back and on his forehead. Later A-2 and A-3 beat and kicked
the deceased on the stomach. P.W.1 shifted the deceased to a local
hospital initially and thereafter to Osmania General Hospital
(OGH).
3. Based on the complaint lodged by P.W.1, the SHO,
P.S.Rajendranagar i.e., P.W.11 registered a case in Cr.No.248 of
2012 for the offences punishable under Sections 307 and 324 IPC
and handed over the investigation to P.W.12. P.W.12 examined
P.Ws.1 to 3 and recorded their statements and visited the scene of
offence, conducted scene of offence panchanama in the presence
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of P.W.4 and another (L.W.8) and prepared rough sketch. He also
visited OGH and recorded the statement of the injured-deceased.
Later, P.W.12 effected arrest of A-1 and recorded his confessional
statement in the presence of P.W.6 and another (L.W.12) and
also seized the knife from his possession under a cover of
panchanama and remanded him and produced him before the court.
The deceased succumbed to injuries on 22.03.2012 at about 0800
hours in OGH, while undergoing treatment. P.W.14 took up
investigation and altered the section of law to Sections 302 and
324 IPC from Sections 307 and 324 IPC. He visited mortuary of
OGH, where once again he secured the presence of P.Ws.1 and 2,
re-examined and recorded their statements. P.W.14 held inquest
over the dead body of the deceased in the presence of P.W.5
and another (L.W.9). P.W.8, Dr.R.Sudha, Associate Professor of
Forensic Medicine in OGH, held post mortem over the dead
body of the deceased. P.W.14 visited the scene of offence and
conducted scene of offence panchanama. Learned IX Metropolitan
Magistrate recorded the statements of P.Ws.1 to 3 under Section
164 Cr.P.C. P.W.14 sent the material objects seized from the scene
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of offence to FSL. During investigation, he effected the arrest of
A-2 and A-3 and produced them before the court for judicial
custody and after completion of investigation and after collecting
all the documents filed charge sheet against A-1 to A-3 for the
offences punishable under Section 302 and 324 read with Section
34 IPC.
4. The appellant-A-1 and A-2 and A-3 denied the charges
framed against them and claimed to be tried.
5. Before the trial court, to bring home the guilt of the
appellant-A-1 and A-2 and A-3, the prosecution examined P.Ws.1
to 14 and marked Exs.P-1 to P-16 and produced M.Os.1 to 6.
No oral or documentary evidence was adduced on behalf of
defence.
6. After trial, the appellant-A-1 was found guilty for the
offences punishable under Sections 302 and 324 read with Section
34 IPC and was, accordingly, convicted under Section 235(2)
Cr.P.C., and sentenced to suffer imprisonment as stated above,
while A-2 and A-3 were found not guilty for the offences
punishable under Sections 302 and 324 IPC and they were,
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accordingly, acquitted under Section 235(1) Cr.P.C. Hence, the
appellant-A-1 preferred the present criminal appeal.
7. We have heard Ms.Naseem Ara, learned counsel for the
appellant-A-1 and learned Assistant Public Prosecutor for the
respondent-State.
8. Learned counsel for the appellant submitted that the trial court erred in convicting the appellant-A-1 based on the inconsistent testimonies of P.Ws.1 to 3; that the alleged occurrence is stated to have taken place during night and there is no possibility for P.Ws.1 to 3 identifying the assailant. Learned counsel further submitted that the prosecution failed to establish the motive for the commission of the alleged offence and the appellant is innocent and he had been falsely implicated in this case. Learned counsel alternatively submitted that even if the prosecution case is accepted, the accused is not liable for punishment for the offence under Section 302 IPC, as there is no intention and the incident occurred on the spur of the moment during altercation and the offence may be treated as culpable homicide not amounting to murder under Section 304 Part-II IPC. In support of her 6 contentions and submissions, learned counsel for the appellant relied on the following decisions:
i. MIRZA GHANI BAIG v. STATE OF A.P1
ii. DILIP v. STATE OF MAHARASHTRA2
iii. HARI SINGH v. SUKHBIR SINGH AND
OTHERS3
iv. TANVIBEN PANKAJ KUMAR PIVATIA v.
STATE OF GUJARAT4
9. Opposing the said submissions, learned Assistant Public Prosecutor representing the State submitted that the prosecution could successfully prove the guilt of the accused with cogent and reliable evidence of direct witnesses P.Ws.1 to 3 and commended the correctness of the judgment of the trial court.
10. We have considered the submissions of learned counsel for the parties with reference to the evidence on record.
11. The point that arises for determination is - whether the conviction and sentence of the appellant-A-1 is justifiable? 1 Manu/AP/1021/1996 2 2004(11) SCC 401 3 AIR 1988 SC 2127 4 1997 (7) SCC 156 7
12. P.Ws.1 to 3 are injured-cum-eyewitnesses to the offence and their evidence enjoys the highest credibility. P.W.1 in his chief examination stated that on the date of incident, he along with P.W.2 was proceeding on a scooter and near Purani Masjid at Hassan Nagar at 10:30 p.m., they saw some people gathered on the road and he honked the horn so that they can give way, on which the said persons scolded him and he stopped the scooter and asked them as to why they were scolding him. A-1 to A-3 were the persons, who gathered there, scolded him. Then A-1 stabbed him with a knife on the left side of the back and on the forehead. Meanwhile, the deceased, who was standing at the scene, asked the accused as to why they were stabbing, on which A-1 stabbed the deceased saying as to why he was interfering. P.W.1 specifically stated A-1 stabbed the deceased twice on his chest. The deceased fell down and they took him to OGH in an auto for treatment. Later, they went to police station and lodged a complaint in Ex.P-1.
13. P.W.1, who was recalled for cross examination by learned counsel for A-1, stated that he cannot identify A-1, however, he 8 can identify the deceased. P.Ws.2, 3 and the deceased are friends. He stated that his wife (P.W.9) shifted the deceased to OGH and initially the deceased was taken to Shafiullah Hospital and from there to OGH. P.W.1 was examined-in-chief on 01.07.2013 and was cross-examined, on being recalled, on 04.09.2013. Thus, there is a gap of more than two months from the date of chief examination and cross-examination. P.W.1 during chief- examination had identified A-1 to A-3 as the same persons who committed the offence. P.W.1 also stated that A-1 stabbed him with a knife on the left side of the back and on the forehead. He also stated that A-1 armed with knife stabbed the deceased twice on his chest. As such, on a consideration of the entire evidence of P.W.1, it appears that in cross-examination which is done after a gap of two months from the date of chief- examination, no credibility can be attached to such statement that he cannot identify A-1. P.W.1 was examined by the doctor P.W.13 Dr.G.Kumaraswamy. P.W.13 deposed that he examined P.W.1 on 16.03.2012 at 12:05 a.m and found the injuries i.e., (i) dressed wound over left scapular region (ii) laceration over forehead 9 and (iii) contusion over right hand. The injuries are simple in nature and P.W.13 issued medical certificate Ex.P-13. The ocular testimony of P.W.1 is corroborated by the medical evidence of P.W.13 and fortifies his testimony that A-1 attacked him and caused stab injuries. Therefore, considering the evidence of P.W.1, it can safely be believed that P.W.1 had identified A-1 as the assailant who stabbed the deceased on his chest with a knife and he also stabbed P.W.1 with a knife on the left side of the back and on the forehead. The evidence of P.W.1 cannot be viewed in isolation with the evidence of P.Ws.2 and 3 who were present at the time of the alleged incident.
14. Coming to the ocular testimony of P.W.2, who was, in fact, a pillion rider on the scooter, driven by P.W.1, he stated that they were returning to their residence after attending a function and when they reached masjid area, A-1 was standing in the middle of the road and P.W.1 honked the horn on which A-1 scolded him as to why he honked the horn and abused them and when they questioned A-1 as to why he abused them, on which A-1 removed a knife and caused injury on the left side of the back of P.W.1 10 and on his forehead. When the deceased intervened stating that as to why they were quarrelling, A-1 stabbed him twice on his chest saying that how he can interfere. The deceased sustained severe injuries and fell down and he along with P.Ws.1 and 3 shifted the deceased to hospital for treatment. In cross-examination also, P.W.2 specifically stated that A-1 stabbed the deceased on his chest and there was no altercation or exchange of blows between them. Nothing is elicited in the cross-examination of P.W.2 to discredit his testimony.
15. P.W.3, who is an independent eyewitness and who was present at the time of incident, in his evidence, stated that he was present when A-1 stabbed P.W.1 on his left side of his back and on the forehead saying as to how he can honk the horn. Meanwhile, when the deceased intervened, A-1 stabbed him twice on his chest, as a result of which, the deceased fell down with bleeding injuries and died in hospital while undergoing treatment. P.W.3 further deposed that he was also beaten by A-2 and A-3 with hands and it appears that he also sustained simple injuries, as per the evidence of P.W.10 (Dr.Manohar). P.W.10 in his evidence stated 11 that he examined P.W.3 on 25.03.2012 and found healed laceration on the chest measuring 5 x 1 cm and issued Ex.P-11 injury certificate. In cross-examination, P.W.3 denied all the suggestions put by learned counsel for the appellant that he was not present at the time of occurrence and that since P.Ws.1 to 3 and the deceased are his friends, he is deposing false. The testimony of injured witnesses enjoys the highest credibility for not only their presence at the scene of occurrence is proved but also they are not expected to shield the real assailant and falsely implicate the innocent. In the instant case, P.Ws.1 and 3 are the injured witnesses. Though P.Ws.1 to 3 admitted that they and deceased are friends, their evidence cannot be discarded because they are interested witnesses.
16. A careful analysis of the evidence of P.Ws.1 to 3 does not reveal any contradictions in their testimony on material aspects. All these witnesses clearly narrated the incident without any contradictions and inconsistencies in their evidence on material particulars. Their evidence clearly establishes the fact that P.Ws.1 and 2 were proceeding on a scooter and when they reached Hasan Nagar at about 10:30 p.m., they saw some persons 12 gathered on the road. Then P.W.1 honked the horn and among the persons somebody scolded and P.Ws.1 and 2 stopped the scooter. A-1 stabbed P.W.1 with knife on the left side of his back and on his forehead and meanwhile the deceased came and intervened and he too was stabbed twice by A-1 on his chest, as a result, the deceased fell down and sustained bleeding injuries and subsequently, while undergoing treatment succumbed to injuries.
17. P.W.8, Dr.R.Sudha, who held autopsy over the dead body of the deceased and issued Ex.P-10 post-mortem examination report, deposed that on 22.03.2012, she conducted autopsy over the dead body of the deceased and observed the following ante-mortem injuries:
i. A sutured wound on the medial side of left nipple over the areola measuring 1 cm with one suture, entered the right ventricle with 200 ml of blood clots in the pericardium.
ii. A sutured wound 4 cms with 3 sutures on the left side of anterior chest wall, 6 cm away and 1 cm below the nipple in the 6m intercostal space, transversely placed, entered the pleural cavity making a wound of 1 x 0.5 x 0.5 cm wound in the left lung. 300 ml of blood present in the left pleural cavity.13
P.W.8 deposed that the cause of death to the best of her knowledge is stab injuries of chest involved in lungs and heart.
18. The testimony of P.Ws.1 to 3, who are injured and eye witnesses corroborates with the medical evidence with regard to the cause of death of the deceased and as per the evidence of P.W.8, the cause of death is due to stab injuries on the chest involved in lungs and heart. P.Ws.1 to 3 consistently stated that A-1 attacked the deceased with a knife and stabbed him twice on his chest. Therefore, the evidence of P.Ws.1 to 3 clearly supported the medical evidence in respect of the place and the nature of injuries sustained by the deceased. Apart from this, the evidence of P.W.6, who is a crucial witness, is important regarding the recovery of weapon used in the commission of the offence. P.W.6 deposed that he along with one Mohd. Naseer Ahmed were present at the time of recording the confessional statement of A-1 and seizure of knife which was marked as M.O.1. In cross- examination of P.W.6, nothing material was elicited to disbelieve his testimony.
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19. From the above discussed evidence, we are of the opinion that the prosecution was able to prove that the appellant-A-1 stabbed the deceased on his chest with a knife-M.O.1 and also caused injuries to P.W.1 and as a result of injuries sustained, while undergoing treatment, the deceased succumbed to the same in the hospital.
20. Learned counsel for the appellant would contend that there is inconsistency in the evidence of P.Ws.1 and 2 and the prosecution failed to establish the motive and object to commit the murder of the deceased and as such, the conviction cannot be sustained. We are not in agreement with the submission of learned counsel for the appellant, as the version of the prosecution witnesses all through is without any improbabilities or inconsistencies in their evidence, as noted above, and has been amply supported by medical evidence. There is credible evidence on record as to the occurrence of the offence and regarding the manner in which the offence was committed by appellant-A-1, as stated by the injured eye-witnesses P.Ws.1 to 3, and which is corroborated by the medical evidence of P.W.13 regarding the 15 injuries sustained by P.W.1 and the post-mortem examination report issued by the doctor P.W.8. The evidence on record, more particularly that of P.Ws.1 to 3, who are injured eye witnesses, rules out any possibility of false implication of the appellant-A-1 and there is no reason to doubt the veracity of the testimony of P.W.6 in whose presence the knife, which was used in the commission of the offence, was recovered. In these circumstances, we have no reason to doubt the veracity of the prosecution case. As stated by the injured-eyewitnesses P.Ws.1 to 3, coupled with the medical evidence, there cannot be any doubt that the appellant-A-1 caused the death of the deceased.
21. Learned counsel for the appellant relied upon the judgments in MIRZA GHANI BAIG V. STATE OF A.P. (1 supra), DILIP V. STATE OF MAHARASHTRA (2 supra), HARI SINGH V. SUKHBIR SINGH AND OTHERS (3 supra), TANVIBEN PANKAJ KUMAR PIVATIA V. STATE OF GUJARAT (4 supra) to show that there was no intention, object or motive for the accused to commit the offence of murder, Section 302 IPC is not applicable. She also alternatively submitted that there was no 16 prior enmity between the parties and the incident occurred on the spur of the moment and the appellant should be convicted only for the offence punishable under Section 304 Part-I IPC. In view of the said submission of learned counsel for the appellant, the further question that remains to be considered is whether the appellant is liable to be convicted for the offence under Sections 302 IPC or 304 Part-II IPC.
22. The Hon'ble Apex Court in a recent judgment in MOHD. RAFIQ @ KALLU V. MADHYA PRADESH5 explained the difference between culpable homicide under Section 304 IPC and murder under Section 302 IPC. It had cited the relevant case laws to understand the difference between the said two Sections and held that the difference lies in the degree of the Act, there was a wide variance of degree of intention and knowledge among both the crimes. It extracted its earlier judgment in STATE OF A.P. V. RAYAVARAPU PUNNAYYA AND ANOTHER6, wherein it was held that:
5 (2021) 10 SCC 706 6 1976 (4) SCC 382 17 "12. In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice- versa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognizes three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.
13. The academic distinction between "murder" and "culpable homicide not amounting to murder" has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300." 18
23. The Hon'ble Apex Court further held that the considerations that should weigh with courts, in discussing whether an act is punishable as murder, or culpable homicide not amounting to murder were outlined in the judgment of the Hon'ble Apex Court in PULICHERLA NAGARAJU @ NAGARAJA REDDY V.
STATE OF A.P.7, as follows:
"29. Therefore, the Court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder are treated as murder punishable under Section 302.
7 (2006) 11 SCC 444 19 The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances; (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body;(iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger;(viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention."
24. Coming back to the facts of the case, from the consistent evidence of the prosecution witnesses it is clear that there is no motive or no animus to the accused against the deceased. There is no deliberate intent to cause the death of the deceased. The incident occurred in a spur of moment without any intention to 20 cause the death of the deceased. The appellant did not have any previous quarrel with the deceased. There was lack of animus. The act was not pre-meditated. The act appears to have been done in the heat of passion or rage. The act of appellant-A1 attacking PW.1 was in the course of a sudden quarrel and there was no specific motive like revenge, greed, jealous or suspicion. As such, having regard to the circumstances, this court is of the opinion that the appellant had no intention to cause the death of the deceased. But as he would be having knowledge that if a person is attacked with a knife on vital parts and the same would likely to result his death, the case falls under the second part of Section 304 IPC - culpable homicide not amounting to murder. Therefore, we feel that it is a fit case to convict the appellant-A-1 for the offence punishable under Section 304 Part-II IPC and, accordingly, we modify the judgment of the court below to this effect.
25. In the result, the criminal appeal is partly allowed. The conviction recorded by the trial court against the appellant-A-1 for the offence punishable under Section 302 IPC is altered to one under Section 304 Part-II IPC. The sentence too is, therefore, 21 modified and instead of rigorous imprisonment for life for the said offence, the appellant-A-1 is hereby sentenced to suffer ten years rigorous imprisonment. The conviction and sentence for the offence punishable under Section 324 IPC and the order directing both the sentences to run concurrently is left undisturbed.
26. Pending miscellaneous petitions, if any, stand closed.
____________________________ DR. JUSTICE G.RADHA RANI _______________________ A.SANTHOSH REDDY, J 11th November, 2022 Lrkm