THE HON'BLE SRI JUSTICE M.LAXMAN
AND
THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI
CRIMINAL APPEAL No. 891 OF 2014
JUDGMENT: (per Hon'ble Sri Justice M.Laxman)
This criminal appeal is filed against the judgment dated
19.11.2010
in Sessions Case No. 54 of 2010 on the file of the II Additional 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.500/- and in default, to undergo a simple imprisonment for one month.
2. The case of the prosecution, in brief, is that on 07.12.2007 at about 05.00 PM., the accused quarreled with some unknown persons at Guntalbaba Darga area and thereafter, he fled from the said area. On the same day at about 21.30 hours, three unknown persons entered into the house of the deceased by calling the name Feroz, for which, the deceased shouted at them and sent them out of his house. On enquiry, the deceased came to know from the neighbours that the accused quarreled with said three persons, and to catch hold of him, the said three persons came to the house of the deceased. Then, the deceased shouted on the accused and abused him. Annoyed by abuses, the accused took out a knife and stabbed the deceased on the 2 head causing bleeding injuries. As a result, the deceased fell on the ground and the accused escaped from the scene. The said incident was witnessed by one Annu Khan (L.W.1), who is brother-in-law of the deceased. Later, the children and wife of the deceased reached the scene of offence and they shifted the deceased to Osmania General Hospital, Hyderabad for treatment, but in the meantime, the deceased died due to bleeding injuries.
3. On the basis of the said allegations, the FIR was initially issued by the Police 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 9 and got marked Exs.P.1 to P.10 and M.Os.1 and 2. The accused has not produced any evidence and denied the incriminating material.
6. After appreciating the evidence brought on record, the trial Court found that the prosecution made out its case and found 3 the accused guilty for the said charge. Accordingly, the trial Court convicted and sentenced the 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 the trial Court without, there being any admissible evidence which would link the accused with the charged offence, has convicted the accused solely relying upon the evidence of P.W.7, who was cited as a witness for the confession and recovery of M.O.2. According to the learned counsel for the appellant, as per the evidence of P.W.7, there is no confession which is admissible under Section 27 of the Indian Evidence Act, 1872, so as to link the recovery of M.O.2 to the incident. Further, if the said evidence is discarded, absolutely there is no evidence pointing out the involvement of the accused for the said charge. According to her, the conviction is unsustainable.
9. On the other hand, the learned Public Prosecutor supported the conviction of the accused. She has submitted that admissible portion of confession leading to recovery of M.O.2 established that M.O.2 was containing blood of group-A, which is same blood group found on the clothes of the deceased which were recovered from body of the deceased. This 4 incriminating material found on M.O.2 links the involvement of the accused for the charged offence. According to her, all the above aspects were rightly considered by the trial Court in convicting the accused and hence, no interference of this Court is required.
10. As seen from the evidence relied upon by the prosecution, the entire case of the prosecution initially relied upon the statement given by the eye-witness i.e., L.W.1, who witnessed the entire incident of alleged infliction of injuries on the head of the deceased with knife. This witness could not be examined since he died by the time of trial. The other witnesses are P.Ws.1 to 4. P.Ws.1 and 2 are son and wife of the deceased and P.Ws.3 and 4 are the neighours.
11. P.W.1 claimed that he has seen the accused running away from his house, and thereafter, he found his father was in pool of blood. P.W.2 did not support the presence of P.W.1 in the house. According to P.Ws.2 and 3, they only saw that three persons came to the house of the deceased and they were driven out by the deceased. P.W.4 has also not supported the fact of three unknown persons coming to the house of the deceased.
12. According to the prosecution, the motive for the offence was on account of the deceased shouting and abusing the 5 accused in connection with three unknown persons entered into the house of the deceased for enquiring the accused. Though the prosecution could able to prove that three unknown persons came to the house of the deceased and it could able to prove that the said persons came in connection with quarrel which took place in between the accused and the said three persons.
13. The other evidence available on record is the evidence of PWs.5 and 7. P.W.5 is the witness for scene of offence and inquest and his evidence is not much relevant. The only evidence which is relevant is of P.W.7, who was cited as witness to the confession leading to recovery of M.O.2 from the backyard of house of the accused.
14. The oral evidence of P.W.7 shows that he did not support the case of the prosecution about the confession which led to recovery of M.O.2. Unfortunately, the admissible portion of the confession, if any made by the accused, was not brought on record and it was not marked at all. If confession leading to discovery is not established, the only evidence which is helpful to the prosecution is statement made by P.W.7 and recovery of M.O.2 from the backyard of the house of the accused. It is not known whether such backyard of the accused was enclosed or open. If it is open premises, there could be possible some other 6 persons throwing M.O.2 inside the backyard of the house of the accused after commission of offence. Therefore, recovery of such a knife (M.O.2) in the backyard of the accused has no much relevance.
15. Further, the fact is that M.O.2, as per forensic report, consists of human blood group of 'A'. According to the prosecution, the blood group of the deceased is also 'A', as found from the clothes of the deceased by the forensic experts, but the clothes were not produced in evidence. Further, it is not established that the clothes which were sent to forensic were the same clothes which the deceased was wearing when the incident had occurred. Since, no witness spoke about the recovery of such clothes from the body of the deceased after the incident, it cannot be said that the blood group 'A' detected on M.O.2 belongs to the deceased. The prosecution has also failed in this regard. If this evidence is discarded, absolutely there is no evidence on record to link the accused for the charged offence. The Court below has not properly appreciated the evidence on record, and the accused is entitled for acquittal of the said charge.
16. In the result, the Criminal Appeal is allowed. The judgment and sentence imposed by the II Additional 7 Metropolitan Sessions Judge at Hyderabad, against the accused in Sessions Case No.54 of 2010 dated 19.11.2010 for the offence under Section 302 of IPC is hereby set aside and the accused is acquitted for the said offence. The appellant/accused shall be set at liberty forthwith unless his detention is required in connection with any other case. The fine amounts, if any, paid by him shall be refunded.
_______________ M.LAXMAN, J _____________________________ SMT.M.G.PRIYADARSINI, J Date: 14.10.2022 GVR/TJMR