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2003 DIGILAW 510 (AP)

AMJAD BIN Mohd. v. State Of A. P.

2003-03-31

R.M.BAPAT, S.ANANDA REDDY

body2003
RAMESH MADHAV BAPAT, J. ( 1 ) THE appellants are accused 1 to 3 in S. C. No. 215 of 1999 before the learned 33 additional Metropolitan Sessions Judge, hyderabad. The appellants/accused were charged for the offences punishable under sections 302 and 323 read with 34 I. P. C. The first charge was against A. 1 under section 302 IPC. He was found guilty of the said charge and he was convicted and sentenced to suffer imprisonment for life and to pay a fine of Rs. 1,000/-, in default to suffer simple imprisonment for a period of three months. The second charge was against A. 2 and A. 3 under Section 302 read with 34 I. P. C. They were found guilty of the said charge and accordingly they were convicted and sentenced to undergo imprisonment for life and to pay a fine of rs. 1,000/-, in default to suffer simple imprisonment for a period of 3 months. The third charge was against A. 1 to A. 3 under Section 323 read with 34 I. P. C. They were found guilty of the said charge and convicted to undergo rigorous imprisonment for 3 months each and to pay a fine of rs. 500/- each, in default to suffer simple imprisonment for one month. All the substantive sentences were directed to be run concurrently. ( 2 ) BEFORE we proceed to consider the facts involved in the case, we would like to place on record that a wrong practice has been developed among the Sessions judges not to frame proper charges. In the instant case, the charge against A. I was framed only under Section 302 IPC. The second charge against A. 2 and A. 3 was under Section 302 read with 34 IPC. That is not the correct way of framing a charge. If there is any allegation that A. 1 and also A. 2 and A. 3, in furtherance of their common intention, committed the murder of the deceased, then the learned Sessions Judge ought to have framed the charge against A. 1 to A. 3 under Section 302 read with 34 IPC and the proper second charge would have been against A. 1 under Section 302 IPC, simplicitor, The Sessions Judge is required to show that the second charge against A. 1 was framed as an alternative charge. This practice should be followed by all concerned. This practice should be followed by all concerned. Now let us proceed to deal with the facts in the present case. ( 3 ) THE substance of the charge against the accused is that on 17. 1. 1999 at about 5 p. m. , infront of House No. 124, Camp No. 6, osmania University Campus, Hyderabad, a. 1 caused the death of Khaja Qutubuddin by stabbing him with a knife on the left side of the chest. ( 4 ) THE case of the prosecution, in brief, is as follows: P. W. 1 was working as Kamati in the Arts College of Osmania University. He was staying along with his parents, brothers and sisters in Camp No. 6 of osmania University. P. Ws. 2 and 3 are brothers of P. W. 1 and the deceased was their father. A. 1 and A. 3 are the sons of A. 2 and they are neighbours of P. W. 1. ( 5 ) ACCORDING to the prosecution, on 17. 1. 1999, at about 11. 00 or 11. 20 a. m. , p. W. 1 along with his brother, P. W. 2, and another went to the house of P. W. 9, who was running chit business, to take part in the auction. The chit was for Rs. 200/- and payment of Rs. 20/- had to be made every week. A. 1 along with his brother and sister came to the house of P. W. 9 to participate in the auction. P. W. I requested p. W. 9 to include their names in the list of participants and that he would make the weekly payment later. A. 1, his brother and sister objected for including the names of those persons in the list of participants stating that the names of those persons who have paid weekly subscription alone be included in the list of participants. On this point, there was a quarrel between the members of the accused family on one hand and the members of P. W. 1 s family on the other. Thereafter, the sister of A. 1 is alleged to have abused the sister of P. W. 1 asking her to elope with somebody as their father was not in a position to perform her marriage. P. W. 9 did not conduct the auction and so they returned to their houses. ( 6 ) AT about 4. Thereafter, the sister of A. 1 is alleged to have abused the sister of P. W. 1 asking her to elope with somebody as their father was not in a position to perform her marriage. P. W. 9 did not conduct the auction and so they returned to their houses. ( 6 ) AT about 4. 00 p. m. , on the same day, the wife of A. 2 went to the house of p. W. I and abused them saying as to why they have quarrelled with her sons and daughter. So saying, she left the house. 15 minutes thereafter, A,1 to A. 3 went to the house of P. W. I and beat him with hands and legs and went away. 15 minutes thereafter the deceased returned to the house from the work place. P. W. 1 informed his father that A. 1 to A. 3 came to their house and beat him. Then the deceased went to the house of the accused and questioned A. 2 as to why they beat his son. Then A. 2 caught hold of the collar of the deceased and told him that they have done a right thing by beating P. W. 1, upon which the deceased told A. 2 that he would report the matter to the police. So saying the deceased came to his house, took his bicycle and started proceeding to the police station. When the deceased was proceeding near the road which was near to the house of the deceased, A. 2 went to him and kicked the bicycle due to which the deceased along with the bicycle fell down on the ground. A. 2 and A. 3 dragged the deceased by holding the legs. A. 1 who was present there, went into the house and came back with a knife and stabbed the deceased once on the left side of the chest. The deceased sustained a bleeding injury. P. Ws. 1, 3, 4 and 5 rushed to the deceased and the accused ran away. P. W. 1 took the deceased in the auto of P. W. 8 to Osmania University Police Station. On seeing the condition of the deceased, the police askad them to take the deceased to the hospital whereupon the deceased was taken to Gandhi Hospital in the same auto of p. W. 8. P. W. 1 took the deceased in the auto of P. W. 8 to Osmania University Police Station. On seeing the condition of the deceased, the police askad them to take the deceased to the hospital whereupon the deceased was taken to Gandhi Hospital in the same auto of p. W. 8. In the hospital, the doctors, after examining the deceased, pronounced him dead. ( 7 ) IT is further stated by the prosecution that at about 7. 00 p. m. , on the same night, P. W. 1 went to Osmania university Police Station and gave a oral complaint to P. W. 15 which was reduced into writing. Ex. P. 1 is the report, on the strength of which a case in Cr. No. 1 1/99 was registered against the accused, and issued f. I. R. , Ex. P. 11, to all concerned. ( 8 ) ON 17. 1. 1999 at about 7. 30 p. m. , P. W. 16, the Inspector of Police took up investigation from P. W. 15. He proceeded to the scene of offence and prepared an observation report, Ex. P. 12, in the presence of P. W. 10. He also prepared a rough sketch, Ex. P. 4, of the scene of offence. On 18. 1. 1999, P. W. 16 held inquest over the dead body of the deceased in the presence of P. W. 10 and another. Thereafter, the dead body of the deceased was sent for autopsy. P. W. 11, the Professor of Forensic medicine, Gandhi Medical College, conducted autopsy over the dead body of the deceased. Ex. P. 8 is the post-mortem certificate. According to him, the cause of death was due to the stab injury to the heart. P. W. 16 arrested the accused on 19. 1. 1999 and on the statement made by A. 1, the police recovered, M. O. I, the knife under ex. P. 10. After completion of investigation, p. W. 16 laid the charge-sheet. ( 9 ) THE plea of the accused is one of total denial. It is also suggested by the accused to the prosecution witnesses by way of defence that they have been falsely implicated in the case. ( 10 ) ON the point of homicidal death, the prosecution relied upon the evidence of p. W. 16, who conducted inquest over the dead body of the deceased. It is also suggested by the accused to the prosecution witnesses by way of defence that they have been falsely implicated in the case. ( 10 ) ON the point of homicidal death, the prosecution relied upon the evidence of p. W. 16, who conducted inquest over the dead body of the deceased. After the inquest was over, the dead body of the deceased was sent for post-mortem examination. On requisition, P. W. I 1 conducted autopsy over the dead body of the deceased and found the following injury on the person of the deceased:- stab wound ante mortem in nature 5 x 1 x 10 cm horizontally placed over the left side of chest 3. 5 cm from the midline, 14 cm below the left clavicle and 1 cm from the left nipple with clean cut margin and sharp angle at the medial end and the other end rounded pearcing the 5th left intercostals space and the upper end of lower lobe of left lung and penetrating the pericardium and left arum of the heart producing an injury of 3 x 2 cm dimension. The injury being directed below upwards. On internal examination, P. W. 11 found that the chest contained 1 1/2 litre of blood. According to the Doctor, the deceased died due to the stab injury to the heart and that the said injury is sufficient in the ordinary course of nature to cause the death of the deceased. ( 11 ) CONSIDERING the evidence led by the prosecution on the point of homicidal death, we do hold that the deceased did die of homicidal death. ( 12 ) IN order to bring home the guilt of the accused beyond reasonable doubt, the prosecution examined P. Ws. 1 to 16 and marked Exs. P. 1 to P. 17 on its behalf. P. W. 1 is the son of the deceased, P. Ws. 2 and 3 are the brothers of the deceased, P. Ws. 4, 5 and 6 are the neighbours and residents of the same locality in Osmania University. P. W. 7 is the Doctor who treated P. W. 1 and issued the wound certificate, Ex. P. 2. P. W. 8 is the auto rickshaw driver in whose auto rickshaw, the injured (deceased) and P. W. 1 were taken to the hospital. 4, 5 and 6 are the neighbours and residents of the same locality in Osmania University. P. W. 7 is the Doctor who treated P. W. 1 and issued the wound certificate, Ex. P. 2. P. W. 8 is the auto rickshaw driver in whose auto rickshaw, the injured (deceased) and P. W. 1 were taken to the hospital. P. W. 9 is the person who was conducting the chit business and unfortunately he did not support the case of the prosecution and, therefore, he was declared hostile. P. W. 10 had acted as a panch for various panchanams, which were conducted by P. W. 16. P. W. 11 is the Doctor who conducted post-mortem examination on the dead body of the deceased and issued Ex. P. 8, the post-mortem certificate. P. W. 12 is another panch witness. According to the prosecution, when A. 1 was in police custody, he expressed his willingness to recover the material object and accordingly m. O. 1 was alleged to have discovered at the instance of A. 1. P. W. 13 is the wife of p. W. 9. P. W. 14 is the S. I. of Police and p. W. 15, S. I. of Police who received the f. I. R. , Ex. P. 1 from P. W. I on the strength of which the crime came to be registered. P. W. 16 is the Investigating Officer. Thus, out of the witnesses examined by the prosecution, P. Ws. 1, 3, 4, 5 and 6 are the eye-witnesses to the occurrence. Let us proceed to scrutinize the evidence of these witnesses so as to ascertain whether the prosecution has been able to bring home the guilt of the accused beyond reasonable doubt. ( 13 ) ALL the above witnesses, viz. , P. Ws. 1, 3, 4, 5 and 6 spoke about the chit business run by P. W. 9 in his house. They also spoke about the quarrel between the prosecution witnesses on one hand and the deceased s family on the other hand. According to them, since there was a quarrel between the two parties, P. W. 9 did not draw the chit and, therefore, all of them went to their respective houses. Now the second stage of the incident starts. They also spoke about the quarrel between the prosecution witnesses on one hand and the deceased s family on the other hand. According to them, since there was a quarrel between the two parties, P. W. 9 did not draw the chit and, therefore, all of them went to their respective houses. Now the second stage of the incident starts. The accused alleged to have went to the house of P. W. 1 and abused the members of the family and this matter was reported by p. W. 1 to his father on his return to the house after attending his work. Then the deceased alleged to have gone to the house of the accused and asked them as to why they had abused and beat his children. A small incident of scuffle takes places in the house where A. 2 alleged to have caught hold of the shirt of the deceased and beat him and, therefore, the deceased told them that he would go and report the matter to the police so saying left the house of the accused. Now the third stage of the incident starts. According to the case of the prosecution, the deceased went to his house, took the bicycle and started going towards the police station by the road which passes through the house of the accused. A. 2 and a. 3 saw the deceased going on the bicycle. Therefore, A. 2 kicked the bicycle as a result of which the deceased fell down along with the bicycle and thereafter A. 2 and A. 3 alleged to have dragged the deceased by holding his legs. On seeing this, A. 1 who was present there, went into his house, brought a knife and gave a stab on the left side of the chest of the deceased causing puncture to the heart. The deceased died before he could be removed to the hospital. The above said evidence was corroborated by all the eye-witnesses and Ex. P. 1, which was filed by P. W. 1. The deceased died before he could be removed to the hospital. The above said evidence was corroborated by all the eye-witnesses and Ex. P. 1, which was filed by P. W. 1. ( 14 ) THE learned Counsel for the appellants/accused submitted at the bar that the role played by A. 2 and A. 3 as spoken to by the prosecution witnesses will not amount to an offence punishable under Section 302 i. P. C. The learned Counsel further submitted that there is no proof that A. 2 and A. 3 had shared the common intention along with A. 1 to kill the deceased. According to the learned counsel, since the deceased was going to the Police Station to lodge a complaint against them on a very trivial matter, they only wanted to obstruct him from going to the police station and, therefore, A. 2 kicked the bicycle and made him to fall down and thereafter the deceased was dragged by A. 2 and A. 3 by holding his legs. The learned counsel further submitted that A. 1 on seeing the deceased lying on the ground being dragged by A. 2 and A. 3, went into the house, brought a knife and stabbed the deceased and if this version of the prosecution witnesses is accepted, then no offence punishable under Section 302 I. P. C. is committed by A. 2 and A. 3. On a careful scrutiny of the evidence of the prosecution witnesses on this aspect, we are of the considered opinion that A. 2 and A. 3 did not share any common intention to kill the deceased. A. 1 independently took the decision to kill the deceased by stabbing him with a knife on the left side of the chest causing puncture to his heart. Therefore, we hold that A. 2 and A. 3 are guilty of the offence under Section 323 read with 34 IPC. ( 15 ) NOW let us proceed to scrutinize the role played by A. I as spoken to by the prosecution witnesses. It is evident from the evidence of the above eye-witnesses that a. 1 went back to his house when he saw a. 2 and A. 3 dragging the deceased by holding his legs, brought a knife and gave a stab injury on the left side of the chest, by which there was a fracture of the heart. It is evident from the evidence of the above eye-witnesses that a. 1 went back to his house when he saw a. 2 and A. 3 dragging the deceased by holding his legs, brought a knife and gave a stab injury on the left side of the chest, by which there was a fracture of the heart. The above evidence of the prosecution witnesses clearly establishes that A. 1 alone intended to kill the deceased by stabbing him with a knife on his chest. In that view of the matter, the learned Sessions Judge was right in convicting and sentencing A. 1 for the offence punishable under Section 302 read with section 34 I. P. C. Consequently, the appeal filed by A. 1 fails. ( 16 ) IN the result, the appeal filed by A1 is dismissed. However, the appeal filed by A2 and A3 is allowed to the extent of setting aside the order of conviction and sentence recorded against them for the offence under Section 302 read with 34 IPC and they are acquitted of the said charge. However, they are found guilty of the offence under Section 323 read with 34 IPC and they are convicted for the said offence and the sentence already undergone by them will meet the ends of justice. It is further directed that A2 and A3 be set at liberty, if they are not required in any other offence.