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
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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,
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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
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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
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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
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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
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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,
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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
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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
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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
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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
