Mohammad Amjad vs The State Of A.P.,
2022 Latest Caselaw 5760 Tel

  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

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?

Manu/AP/1021/1996

2004(11) SCC 401

AIR 1988 SC 2127

1997 (7) SCC 156

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

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

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

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

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

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.

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.

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

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

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

"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."

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

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

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,

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