Telangana High Court
Mohd. Shaaker, Hyd vs State Of Telangana, Hyd on 10 July, 2024
Author: P.Sam Koshy
Bench: P.Sam Koshy
THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE SAMBASIVARAO NAIDU
CRIMINAL APPEAL No.1207 OF 2014
JUDGMENT:
(Per the Hon'ble Sri Justice Sambasivarao Naidu) This Criminal Appeal has been filed by the sole accused in S.C.No.130 of 2014, under Section 374 (2) Cr.P.C., and the appellant seeks to assail the Judgment dated 07.10.2014, whereunder the trial Court found him guilty for the offence under Section 302 r/w 34 Indian Penal Code (for short 'IPC') and convicted him under Section 235 (2) Cr.P.C. The appellant herein was sentenced to undergo imprisonment for life and also to pay fine of Rs.10,000/-, in default to suffer rigorous imprisonment for a period of (6) months.
2. The appellant herein was charge sheeted along with (3) others with an allegation that all of them have committed an offence under Sections 302 r/w 34 IPC. As per the allegations made in the charge sheet, the prosecution has claimed that one Mohd. Ahmed (hereinafter be referred as deceased) was having illegal 2 PSK,J & SSRN, J Crl.A.No.1207 OF 2014 intimacy with one Mahmooda Begum since two (2) years prior to the alleged offence. However, the deceased started harassing her with a demand of Rs.50,000/- threatening her with dire consequences, if she failed to pay the said amount. In view of the said harassment, said Mahmooda Begum committed suicide on 10.08.2013 by way of hanging and in connection with the said death, a case in crime No.201 of 2013 has been registered by the concerned police under Section 174 Cr.P.C.
3. In view of the said suicidal death, accused Nos.1 to 4 bore grudge against the deceased and they were waiting for a chance to kill him. The accused No.4 is the father of said Mahmooda Begum. The prosecution has further alleged that on 12.08.2013 at about 09:30 p.m., the deceased visited the area where the accused were staying along with his friend by name Wajid Nawab @ Khaleelullah Shareef who is examined as PW6 during trial, and having noticed the accused at their street, the accused Nos.1 to 4 attacked him with granite stones and killed him in the spot.
4. On receipt of a complaint from PW1 at midnight of 12/13-08-2013, PW11 the then Inspector of Police, 3 PSK,J & SSRN, J Crl.A.No.1207 OF 2014 Santoshnagar registered a case about the above stated offence and took up the investigation. During the course of investigation he has examined PW1 and other witnesses. He had conducted panchanama at the scene of offence, seized the granite boulders used by the accused in the commission of offence and prepared a rough sketch. He has also conducted inquest on the dead body of the deceased and referred the same for post mortem examination.
5. The prosecution has further claimed that on 13.08.2013 at about 05:00 P.M., the appellant herein and accused No.2 appeared before the Investigating Officer and surrendered before him. PW11 said to have interrogated them in the presence of LW15-Mohd.Khaleel and LW16- Syed Ijaz and said to have recorded the alleged confession of the accused. PW11 having completed the investigation, filed change sheet against all the (4) accused. After completion of committal proceedings and on their appearance, all the accused were examined by the trial Court and were charged under Section 302 r/w 34 IPC.
6. The accused have denied the allegations. During trial, the prosecution had examined (11) witnesses 4 PSK,J & SSRN, J Crl.A.No.1207 OF 2014 and marked Exs.P1 to P11 and MOs 1 to 8. After conclusion of the prosecution evidence, the accused were examined under Section 313 Cr.P.C., and the incriminating material has been explained to the accused. They have denied the material allegations. The defence of the accused is of total denial.
7. The learned District Judge having appreciated the allegations made in the charge sheet and evidence of PWs 1 to 11, came to the conclusion that though the prosecution is not able to prove the guilt of the A2 to A4 for the offence under Section 302 r/w 34 IPC, still found accused No.1 i.e., appellant herein, guilty for the said offence and accordingly, acquitted accused Nos.2 to 4 under Section 235 (1) Cr.P.C., but convicted the appellant under Section 235 (2) Cr.P.C., and sentenced him to suffer imprisonment for life and also to pay fine of Rs.10,000/-. In case of default in payment of fine, the appellant has to undergo rigorous imprisonment for period of (6) months.
8. The present appeal has been filed on various grounds. The appellant has claimed that the trial Court failed to appreciate the evidence in proper way, thereby came to an incorrect conclusion. There was no evidence to 5 PSK,J & SSRN, J Crl.A.No.1207 OF 2014 prove the guilt of the appellant for the offence under Section 302 IPC. As per the evidence of PW6 who is shown as eye witness to the alleged offence, at the time of alleged offence, the appellant was under the influence of liquor. There was drizzling. Since the offence said to have been occurred in the night time, it was highly impossible for the witnesses to identify the culprits. The trial Court ought not to have accepted the evidence of PWs 1 to 3 and PW6 as they are highly interested witnesses. Therefore, on all these grounds he sought for setting aside the impugned judgment.
9. Learned counsel for the appellant has submitted that except PW6 there is no other eye witness to the alleged offence. In the light of the evidence of PW6 it is very clear that he did not witness the alleged murder. Therefore, trial Court ought not to have considered the evidence of PW6 and the trial Court ought to have considered the defence of the appellant and other accused wherein they have claimed that they have falsely implicated in the present case.
10. Learned counsel for the appellant has also submitted that even if the Court believed the evidence of 6 PSK,J & SSRN, J Crl.A.No.1207 OF 2014 PW6, still in view of his evidence the appellant and deceased went to the scene of offence on their own and there was no evidence to believe that appellant and other accused had a common intention to kill the deceased. As such, the offence may fall under Section 304 part II IPC and there is no evidence to believe that the appellant herein committed murder as alleged by the prosecution.
11. On the other hand, learned Assistant Public Prosecutor has submitted that there is no dispute about the homicidal death of the deceased. The medical evidence and other circumstances would show that the deceased died due to multiple injuries that were caused by use of boulders and PW6 has categorically deposed the way in which the deceased died on that particular day. Thereof, the trial Court rightly found the appellant herein guilty for the offence under Section 302 IPC as such sought for dismissal of the appeal.
12. According to the allegations in the charge sheet and evidence of the material witnesses, it was specifically alleged against the appellant and other accused that prior to the date of offence, one Mahmooda Begum with whom the appellant herein had illegal intimacy, committed 7 PSK,J & SSRN, J Crl.A.No.1207 OF 2014 suicide and on the date of offence PW6 and the deceased proceeded to Santoshnagar and on the way they stopped their vehicle at DRDL and consumed liquor and on their way having noticed the appellant herein, deceased called him by his name and having noticed the deceased at that location, appellant herein called his brothers, and accused Nos.2 and 3 and one woman in burkha came to the scene of offence and all of them beat the deceased with hands and appellant herein threw a boulder on his legs and upper portion of the deceased.
13. Therefore, the evidence of this particular witness clearly shows that after noticing the appellant herein, the deceased called him by his name and then only the appellant and other accused said to have attacked him. As per the evidence of PW6 in his examination in chief itself, appellant herein threw a boulder on the legs of the appellant and in the cross examination, it is elicited from PW6 that on that particular day they have started consuming liquor from 03:00 p.m. Even though PW6 claimed that appellant herein beat the deceased with hands and threw a boulder on his legs and upper body, 8 PSK,J & SSRN, J Crl.A.No.1207 OF 2014 this particular portion of his evidence was not there in his previous statement before the police.
14. In addition to this PW6 admitted that he has no knowledge as to how the deceased received an injury on his head as by that time he left the place. He has also admitted that by the time of above said incident he and the deceased were highly intoxicated. Apart from this evidence, there is no other eye witness to the alleged offence.
15. According to PW1 on 12.08.2013 at about 11:30 P.M., a friend of his brother informed PW1 that the deceased found dead near Rakshapuram. Therefore, he rushed to the place where he found the dead body of the deceased. PW2 is a witness to the scene of offence panchanama.
16. PW3 is none other than the wife of deceased and as per her evidence the deceased was having illicit intimacy with one Mahmooda who committed suicide and two days later her husband was killed by accused Nos.1 to
4. But, PW3 is not an eye witness to the incident and what all she deposed before the Court, is hearsay evidence.
17. PW4 did not support the prosecution and was declared as hostile. PW5 is a witness to the inquest on the 9 PSK,J & SSRN, J Crl.A.No.1207 OF 2014 dead body of the deceased and as per his evidence, the mediators who were present at the time of inquest were of the opinion that the deceased died due to injuries, but he did not state as to who caused those injuries.
18. Therefore, the evidence of all the witnesses clearly indicates that on the above referred date when the deceased and PW6 were proceeding on their way and when the deceased noticed the accused No.1, called him. However, it is alleged that the appellant along with three other persons killed him by using granite boulders. PW6 admitted before the Court that he does not know how the deceased received head injury. The trial Court gave benefit of doubt to the other accused because of the evidence of PW6 that he has no acquaintance with the other accused.
19. Therefore, the oral evidence of PW6 clearly indicates that he did not witness the actual incident wherein somebody threw boulder on the face of the deceased. Even if it believed that the appellant has committed the offence, it cannot be said that he and other persons who were present with him had an intention to kill the deceased. Perhaps in view of the death of Mahmooda, there were some ill-feelings between the family members of 10 PSK,J & SSRN, J Crl.A.No.1207 OF 2014 the deceased and father of the said Mahmooda. But, that itself, cannot be a basis for concluding that the appellant was having intension to kill the deceased or the appellant himself caused the injury that killed the deceased.
20. In the light of the evidence of PW6 that he noticed appellant and others and there was a quarrel between those four (4) persons and the deceased herein and his evidence is corroborated by the medical evidence to the extent of the homicidal death of the deceased, it can be believed that the appellant though without having any intention made an attack on the deceased, which resulted his death with multiple injuries. Therefore, the prosecution is not able to establish the guilt of appellant for the offence under Section 302 IPC. But, still there is evidence to believe that because of the acts of the appellant, the deceased received grievous injuries, causing his death. Therefore, the offence falls under Section 304 part II, but not under Section 302 IPC. Therefore, the sentence has to be modified accordingly.
21. In the result, the appeal is allowed in part. The conviction of the appellant under Section 302 IPC has been modified as conviction under Section 304 part II IPC. The 11 PSK,J & SSRN, J Crl.A.No.1207 OF 2014 appellant is sentenced to undergo imprisonment for period of eight (8) years maintaining the fine that was imposed by the trial Court. The appellant is entitled to the benefit of set-off under Section 428 Cr.P.C.
Pending miscellaneous applications, if any, shall stand closed.
_________________________ JUSTICE P.SAM KOSHY ___________________________________ JUSTICE SAMBASIVARAO NAIDU Date:10.07.2024 PSSK