Shaik Ahmed Ahmed, Hyd., vs State Of Telangana, Rep Pp.,
2022 Latest Caselaw 5117 Tel

          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

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

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

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

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

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

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