Telangana High Court
Syed Abdul Hameed, Hyderabad., vs The State Of Telangana, Rep Pp., on 9 January, 2025
THE HONOURABLE SRI JUSTICE K.SURENDER
AND
THE HONOURABLE SRI JUSTICE K. SARATH
CRIMINAL APPEAL No.838 OF 2017
JUDGMENT:
(per Hon'ble Sri Justice K.Surender)
This appeal is filed by appellant/sole accused
aggrieved by the judgment, dated 18.07.2017, passed in
S.C.No.504 of 2012 on the file of I Additional Metropolitan
Sessions Judge at Hyderabad, convicting the appellant for
the offence punishable under Section 302 of Indian Penal
Code (for short 'IPC').
2. Heard learned counsel for the appellant and learned
Additional Public Prosecutor for respondent-State.
3. Briefly, the case of the prosecution is that the
appellant was convicted for murder of one Iqbal(deceased)
on 24.08.2011, by stabbing him on his chest. The said
incident happened when PW1 and others went to mobile
shop situated at Falaknuma Railway Bridge. PW1 used to
visit the said mobile shop regularly. At around 12:30 p.m.,
PW1 went to the mobile shop and asked the appellant to
return his mobile which was given for repair in the shop.
However, the appellant was angry at the insistence of PW1
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and beat PW1 with hands. Then PW1 called his friends
namely Nizamuddin (PW9) and Iqbal (deceased). All three of
them at around 3:00 p.m., confronted the appellant. There
was a quarrel between them during which PW1 and his
friends beat the appellant with hands. At about 3:15 p.m.,
the appellant took out a knife and stabbed on chest of
Iqbal/deceased and fled the scene. Iqbal/deceased received
bleeding injuries. PW1 informed PW8/father of deceased.
PW8 went to the spot and taken deceased to the hospital.
Complaint/Ex.P1 was filed at 3:45 p.m., on very same day.
The said complaint is an English written complaint.
4. Initially, deceased was taken to Owisi Hospital and
thereafter, the deceased was shifted to Osmania General
Hospital. While undergoing treatment in Osmania General
Hospital, deceased died at 7:35 p.m., on the very same day.
5. PW11 received telephonic message from Osmania
General Hospital regarding the death of deceased. PW11
went to the scene of offence and examined witnesses. After
the inquest proceedings were concluded, the body was sent
for postmortem examination and the same was concluded
by PW7 on 25.08.2011. PW7 found the following injuries:
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"1. A sutured wound over the middle of the
anterior chest wall on the right side 1 c.m. Away
from the mid line, measuring 4 cms with four
sutures. The wound has penetrated the right lung
through III right inter costal space making a stab
wound of 2 x 1 x 1 c.m. Size / 400 ml of blood
stained fluid in the right plural space.
2. Abrasion over the left anterial chest wall 1
x 1 cm."
6. Learned Sessions Judge found the appellant guilty on
the basis of evidence of PWs.1, 2 and 9 who are
eyewitnesses to the incident.
7. Learned counsel appearing for the appellant would
submit that PW1 admitted that he does not know how to
read or write English. However, complaint/Ex.P1 was
scribed in English. The scribe of the complaint was not
examined. Though the complaint/Ex.P1 was filed at 3:45
p.m., the complaint/Ex.P1 reached the concerned
Magistrate at 3:20 a.m., on 25.08.2011, with a delay of 12
hours from time of lodging the complaint.
8. Learned counsel further argued that the initial
version was suppressed by the prosecution. According to
PW12, the statement of PW1 was recorded by PW10 under
Section 161 Cr.P.C. However, the same was not forwarded
to the Court and the statement was not even available
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when PW12 deposed before the Court. The police went to
the scene, however, at the scene of offence
panchanamma/Ex.P2, panchas did not find any evidence
at the scene to show that the incident of stabbing
happened. For the said reason, it creates doubt whether
the scene of offence as projected by the prosecution is
correct. PW11/investigating officer did not examine any
witnesses who attended to the deceased at Owisi Hospital
and also at Osmania General Hospital nor any medical
records were collected. The suppression of records and non
examination of doctors shows that the earliest version was
suppressed.
9. Alternatively, learned counsel submits that PW1 and
his friends went to the shop of the appellant. Thereafter an
altercation took place at around 12:00 p.m., and at about
3:00 p.m., PW1 called his friends PW9 and deceased. Again
altercation ensued between them and after 15 minutes it is
alleged that the appellant stabbed once on the chest of the
deceased. For the said reason, the offence may fall under
Section 304 of IPC and not under Section 302 of IPC.
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10. Learned counsel relied on the judgment of Hon'ble
Supreme Court in Ajmal v. State of Kerala 1 wherein it
was held as follows:
"11. The question of whether in a given case,
a homicide is murder punishable under Section
302 IPC, or culpable homicide, of either
description, punishable under Section 304 IPC has
engaged the attention of Courts in this country for
over one-and-a-half century, since the enactment
of IPC; a welter of case law, on this aspect exists,
including perhaps several hundred rulings by this
Court. The use of the term "likely" in several places
a 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. This
difference lies in the degree of the act. There is a
very wide variance of degree of intention and
knowledge among both the crimes.
12. The decision in State of A.P. v.
Rayavarapu Punnayya notes the important
distinction between the two provisions, and their
differing, but subtle distinction. The Court
pertinently pointed out that: (SCC p. 386, paras
12-13)
'12. In the scheme of the Penal Code,
"culpable homicide" is genus and "murder" its
(2022) 9 SCC 766
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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 recognises 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.
13. The considerations that should weigh
with courts, in discerning whether an act is
punishable as murder, or culpable homicide, not
amounting to murder, were outlined in Pulicherla
Nagaraju v. State of A.P. This Court observed that:
(SCC pp. 457-58, para 29)
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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 1 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.
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)
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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."
11. Learned counsel also relied on the judgment of
Hon'ble Supreme Court in Major Singh v. State of Punjab
and Another 2 where it was held as follows:
"15. Intention plays a vital role in criminal
jurisprudence. An offence may not be said to be
committed if the prosecution fails to prove the
intention to commit that crime. Intention is pivotal
to decide whether the accused has committed
culpable homicide amounting to murder or
culpable homicide not amounting to murder. Along
with intention, knowledge and the degree of crime,
i.e., how the deceased was killed, plays an
important role in deciding."
12. On the other hand, learned Public Prosecutor argued
that the evidence of eye witnesses account PWs.1, 2 and 9
is sufficient to infer that it was the appellant who had
stabbed the deceased. There is no reason why PW1 and
others would speak against the appellant. If the sequence
of events are look into, the stabbing had taken place at
2022 SCC Online SC 1443
9 KS, J & SK, J
3:00 p.m., and the deceased was taken to the hospital and
the deceased died at around 7:35 p.m.
13. The complaint was lodged at 3:45 p.m., however, FIR
reached the Court at around 3:20 a.m. No reasons are
given as to why there was a delay in sending the complaint
to the Court. Further, PW10 recorded the statement of
PW1. However, the same was suppressed, as admitted by
PW12. The doctors at Owisi and Osamina General
Hospitals were not examined nor any medical records were
collected from the said Hospitals. The earliest version
apparently is suppressed by the prosecution i.e., the
version given to the doctors at Owisi and Osamina General
Hospitals. Further, the statement of PW1 at the earliest
point of time recorded by PW10 is also suppressed. The
suppression of medical records, statement of PW1 and the
complaint reaching the Court with a delay of 12 hours
casts doubt regarding the correctness of the prosecution
case. There is no reason why the documents which were
available were suppressed by the prosecution, unless the
prosecution subsequently came up with a different version.
Though PW10 stated that FIR was immediately dispatched,
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the delay of nearly 12 hours is not explained. The police
station and the Court are within the city limits.
14. This Court concludes that the earliest version is
suppressed by the prosecution which entitles benefit of
doubt to the appellant. Discussion regarding alternative
submission by learned counsel is not necessary, since this
Court finds that the appellant is entitled for acquittal
15. Accordingly, Criminal Appeal is allowed and the
conviction and sentence imposed against the appellant in
S.C.No.504 of 2012 on the file of I Additional Metropolitan
Sessions Judge at Hyderabad, is hereby set aside. Their
bail bonds shall stand cancelled.
_________________
K.SURENDER, J
___________________
K.SARATH, J
Date: 09.01.2025
Kgk/mnv
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THE HONOURABLE SRI JUSTICE K.SURENDER
AND
THE HONOURABLE SRI JUSTICE K. SARATH
CRIMINAL APPEAL No.838 OF 2017
(per Hon'ble Sri Justice K.Surender)
Date: 09.01.2025
Kgk/mnv
