Telangana High Court
Syed Naser Hashmi vs The State, on 25 July, 2024
1
THE HONOURABLE SRI JUSTICE K.SURENDER
AND
THE HONOURABLE SRI JUSTICE J. SREENIVAS RAO
CRIMINAL APPEAL No.294 OF 2015
JUDGMENT:
(per Hon'ble Sri Justice K.Surender)
1. This appeal is filed aggrieved by the judgment dated
05.01.2015 in S.C.No.534 of 2011, on the file of III Additional
Metropolitan Sessions Judge, Hyderabad, convicting the
appellant for an offence under Section 302 of IPC and
sentence to life in prison.
2. Heard the learned counsel for the appellant/accused
and Sri Jithender Rao Veeramalla, learned Additional Public
Prosecutor for respondent-State.
3. Briefly, the case of the prosecution is that P.W.1 and
the appellant were living as husband and wife. The appellant
is the 2nd husband and P.W.3 was the 1st husband. She was
married to P.W.3 earlier and had five children. The deceased
boy was the 5th child born to P.W.1 and P.W.3. The incident
happened on 04.07.2009 when P.W.1 went to her employer's
house to get Rs.200/- for the purpose of getting provisions.
At that point of time, the boy and the accused were alone
present in the house. Though P.W.1 insisted that she wants
to take the child with her, the accused did not allow her to
take him and asked her to go to her employer's house and get
the amount. When she came back after an hour with the
money, she found the boy on the ground with injuries.
Immediately, the boy was shifted to private hospital where he
was declared as brought dead. Since she believed that it was
accused who had killed him, she lodged a complaint/Ex.P.1
to the Police. However, according to P.W.7, having received
information regarding death being caused, the Police went to
the premises and recorded statement of P.W.1 and prepared
scene of offence panchnama. The Police having investigated
the case on the basis of statement of P.W.1, that the
appellant was alone present in the house, when she left the
child in the house and when she came back, she found the
child dead. Charge sheet was filed for the offence under
Section 302 of IPC. Further, post mortem report also
revealed that the death was on account of blunt injury to the
chest and abdomen. P.W.6 is the Doctor who conducted
autopsy and gave opinion for the cause of death.
4. Learned senior counsel appearing for the appellant
would submit that evidence of P.W.1 is highly discrepant.
The narration given by her regarding the incident was
contradicted by the evidence of other witnesses in the case.
P.W.3, who is the earlier husband had stated that he was
also visiting her and P.W.1 was an irresponsible mother.
Further, senior counsel argued that there is no evidence of
marriage in between the appellant and P.W.1. Since there is
no acceptable evidence about the death of the child, benefit of
doubt has to be extended. In fact, D.W.1 who was examined
before the Court below had stated that on the date of
incident, accused was staying with him and was in his house
for three days i.e., from 03.07.2009 to 05.07.2009.
5. On the other hand, learned Public Prosecutor would
submit that it was the appellant/accused who was present in
the house and it is not the defence that anyone else might
have entered the house and caused the injury to the
deceased boy.
6. Having gone through the evidence of witnesses, P.W.1
was examined in chief on 12.11.2013 and thereafter, she was
cross-examined on 27.03.2014 and again on 30.05.2014. On
the last date of cross-examination, a suggestion was made
that the accused was not present in the house either on
03.07.2009 or 04.07.2009 as he went to attend a function at
his friend's house. Apparently, the defence taken is
subsequently thought about examined D.W.1. The evidence
of D.W.1 is more doubtful, though he says that there was a
function in the house, except invitation card being filed
before the Court, no photographs of the function were filed
nor any witnesses were examined to show that any function
was held on the said date. Witness denied that there was
any photograph. Having taken an alibi, the accused failed to
prove that he was not present in the house. Failure to prove,
alibi can also be treated as a circumstances against the
accused.
7. The difference between murder and causing death
which is culpable homicide has been discussed by the
Hon'ble Supreme Court and also High Courts in several
judgments. In Mohd.Rafiq Alias Kallu vs. State of Madhya
Pradesh 1, the Hon'ble Supreme Court held as under:-
" The question of whether in a given case, a
homicide is murder, punishable under Section 302 of
IPC or culpable homicide of either description,
punishable under Section 304 of IPC, has engaged the
attention of courts in India for over one-and-a-half-
century, since the enactment of the IPC. A welter of
case law, on the aforesaid aspect exists, including
perhaps several hundred rulings by the Supreme
(2021)10 SCC 706
Court. The use of the term "likely" in several places in
respect of culpable homicide, highlights the element of
uncertainty that the act of the accused may or may
not have killed the person. Section 300 IPC which
defines "murder", however refrains from the use of the
term likely, which reveals absence of ambiguity left on
behalf of the accused. The accused is for sure that his
act will definitely cause death. It is often difficult to
distinguish between culpable homicide and murder as
both involve death. Yet, there is a subtle distinction of
intention and knowledge involved in both the crimes.
Such difference lies in the degree of the act. There is a
very wide variance of degree of intention and
knowledge among both the crimes."
8. Once it is proved by the prosecution that the appellant
was alone present in the house, the burden shifts on to him
under Section 106 of the Evidence Act to prove as to what
caused the death of the boy. As seen from the record,
initially he had denied and later, he had set up an alibi
stating that he was not at all present in the house on the day
of incident which was not proved.
9. The death was caused on account of blunt force on the
chest and abdomen. The Doctor did not speak about the
possible manner which the injuries were inflicted.
Contusions were found in the chest area, abrasion on the
elbows and liver ruptured. It appears that the boy was b adly
beaten in the absence of P.W. In the said circumstances,
conviction under Section 302 of IPC is altered to Section
304-I of IPC.
10. Since the appellant was in jail from 01.05.2015 to
11.09.2023 i.e., for more than 8 years, this Court deems it
appropriate to reduce the sentence of imprisonment to the
period already undergone by him.
11. Accordingly, the Criminal Appeal is partly allowed
reducing the sentence of imprisonment imposed by the
Sessions Court to the period already undergone by the
appellant. Miscellaneous applications pending, if any, shall
stand closed.
_________________
K.SURENDER, J
______________________
J. SREENIVAS RAO, J
Date: 25.07.2024
dv
