THE HON'BLE SRI JUSTICE M.LAXMAN
AND
THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI
CRIMINAL APPEAL No. 498 OF 2014
JUDGMENT: (per Hon'ble Sri Justice M.Laxman)
1.
This criminal appeal is filed against the judgment dated 02.04.2014 in Sessions Case No. 107 of 2013 on the file of the Metropolitan Sessions Judge at Hyderabad, whereunder the appellant was convicted for the offence under Section 302 of IPC and sentenced to life imprisonment and to pay a fine of Rs.10,000/- and in default, to undergo simple imprisonment for a period of six months.
2. The case of the prosecution, in brief, is that the deceased was an auto driver and runs auto on rent. On 17.11.2011 between 03.30 to 04.00 AM, the deceased parked his auto near garage owned by one Mohd. Shareef (P.W.10). The accused has also parked his auto near the same garage. There was quarrel in between them with regard to deceased stealing the auto parts of the accused. P.W.10, who was sleeping in the garage, woke up and saw both the accused and the deceased were quarrelling. The accused was beating the deceased. Immediately, P.W.10 went to them and tried to pacify the issue, but he was driven out by them. Then, he went to P.W.4, who was in-charge of garage and informed the incident. Then, they both came to the place of 2 offence and found that the deceased was in a pool of blood and the accused was found with blood wetted clothes. The accused demanded money from P.W.4, for which P.W.4 took the accused to the house of his brother-in-law (P.W.6) and gave the money. Later, a complaint was lodged about the incident by P.W.1, who is the brother-in-law of the deceased.
3. On the basis of the said complaint, the police initially issued FIR and subsequently, after completion of investigation charge sheet was laid against the accused for the offence under Section 302 of IPC.
4. Upon committal, the trial Court framed charges under Section 302 of IPC against the accused. The accused denied the charge and claimed to be tried.
5. The prosecution, to support its case, examined P.Ws.1 to 14 and got marked Exs.P.1 to P.10 and M.Os.1 to 3. The accused has not produced any evidence and denied the incriminating material.
6. The Court below after scrutiny of the evidence on record, found that the offence is made out under Section 302 of IPC and found accused guilty for the said charge. Accordingly, the trial 3 Court convicted and sentenced the accused/appellant herein as aforestated. Challenging the same, the present appeal is filed.
7. Heard both sides.
8. Learned counsel for the appellant/accused contended that there is no direct evidence to prove that the deceased was being killed by the accused and the only evidence which supports the case of the prosecution is that there was quarrel in between the accused and the deceased prior to deceased was being found in a pool of blood at the place of occurrence of quarrel. The learned counsel further contended that the occurrence of quarrel is supported by P.W.10, and basing on such evidence, the Court below ought not to have convicted the accused for the said charge. He has also contended that even if the accused has caused injuries to the deceased, such injuries were without any intention to cause death and such injuries do not result of the death of the deceased in the ordinary course of nature. Therefore, conviction under Section 302 of IPC is not sustainable.
9. On the other hand, the learned Public Prosecutor supported the conviction of the accused. It is submitted that if the evidence of P.Ws.2, 4 and 10 read along with the recovery of blood stained clothes and shoes of the accused from his house, 4 in the light of forensic report, clearly show that the accused and the deceased were seen together and were fighting, immediately before the deceased was found dead. The accused did not explain when he has parted away the company of the deceased after his quarrel with the deceased. The presence of blood marks on the clothes of the deceased immediately after incident, near the place of incident, as witnessed by P.W.4 and the forensic report, which show the blood group of deceased on the clothes of accused that the accused was the person, who caused injuries to the deceased. If the number of injuries are seen, they clearly demonstrate that the accused has intentionally caused injuries knowing that such injuries are likely to cause the death of the deceased. If these two ingredients are satisfied, it can be said that the trial Court rightly convicted the accused for charge under Section 302 of IPC and hence, no interference is required by this Court.
10. A glance of the evidence of prosecution shows that it has relied upon the evidence of P.W.10, who is the person who had seen the incident of fighting between the accused and the deceased, near the scene of offence. In fact, he has deposed that he tried to pacify them, but he was unsuccessful in doing so. P.W.10 further deposed that then, he went to P.W.4 for help and they together came back to the scene of offence. By that time, 5 the deceased was found dead and the accused was also found in that place. The evidence of P.W.4 shows that he had seen the accused clothes were wetted with blood. This testimony of P.W.4 corroborates with the forensic report with regard to presence of human blood on M.Os.1 to 3.
11. The seizure of M.Os.1 to 3 from the house of the accused is spoken by P.W.14 - the Investigating Officer. According to evidence of P.W.8, who is the witness to confession and recovery statement, the clothes were seized in the Police Station from the hands of the accused.
12. The incident had occurred on 17.11.2011 and confession and recovery of panchanama was conducted on 23.11.2011. If the evidence of P.W.14 and P.W.8 is appreciated together, it is highly improbable that no person would carry the clothes which are wetted with the blood in the hands, as spoken by P.W.8, to the police station. Whereas, the evidence of P.W.14 appears to be more probable in the sense that those clothes and shoes were recovered from the house of the accused. There is no material brought on record to discredit the testimony of P.W.14 with regard to seizure of M.Os.1 to 3 from the house of the deceased. The seizure can be believed by relying on the evidence of P.W.14, even though the place of seizure is not supported by P.W.8. 6 Once the seizure is believed, even though the blood group on the M.Os was not detected, this evidence somewhat corroborates the claim made by P.W.4 that he had seen the accused with the clothes wetted with blood.
13. The evidence of P.Ws. 4 and 10, if closely scrutinized, they clearly establish that it was the accused who was there all along with the deceased prior to the deceased was being found dead and immediately thereafter. This means, the accused was the person who has inflicted the injuries on the deceased. To this extent, the trial Court was right in believing the evidence of P.Ws.4 and 10 and rightly found that the accused was responsible for the injuries inflicted on the deceased.
14. Coming to the evidence of P.W.12 - doctor, it shows that the deceased was found dead with fourteen (14) injuries on the body. All the injuries are caused by a blunt object and shoe marks were present on the body of the deceased. She denied the claim of the accused that the injuries found on the body of the deceased were not possible with shoes. This means, according to P.W.12, the injuries found on the deceased might be possible with the kicks given with shoes. The doctor opined that the cause of death was on account of internal hemorrhage, which was found under injury No.14. Except injury No.14, no other 7 injury found which would likely to cause the death of the deceased.
15. Now, the question is even if the accused caused injury No.14, whether he knew that such an injury likely to cause the death or he had only intention to cause injury which does not cause the death? A thin line of distinction is required to be made so as to whether the accused has to be convicted under Section 299 of IPC i.e., Culpable Homicide or under Section 300 of IPC i.e., Murder?
16. It is clear from the above evidence that injury No.14 must have been caused when the accused kicked the deceased with shoes. Such forceful injury may not be possible, if anyone hits with heavy shoes, which are not heavy enough to cause internal bleeding injury. If the kick is the factor for causing injury No.14, it looks improbable that the accused knew that such a bodily injury which he caused with the kick by wearing shoes is likely to cause death. This Court feels that there is lack of material to assume that the accused knew that the injury he had caused likely to cause death. Therefore, benefit of doubt must be extended to the accused. In the circumstances, this Court feels that conviction of the accused can be altered from Section 300 of IPC to Section 299 of IPC since the act of the 8 accused amounts to culpable homicide and not amounts to murder and he is liable to be convicted under Section 304-I of IPC.
17. In the result, the Criminal Appeal is partly allowed. The judgment and sentence dated 02.04.2014 in Sessions Case No.107 of 2013 on the file of the Court of the Metropolitan Sessions Judge, Hyderabad for offence under Section 302 of IPC is modified to that of Section 304-I of IPC. The period undergone by the appellant/accused shall be taken as sentence for convicted offence and he shall be set at liberty forthwith, if he is not required in any other case or crime.
_______________ M.LAXMAN, J _____________________________ SMT.M.G.PRIYADARSINI, J Date: 14.10.2022 GVR/TJMR