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Andhra High Court · body

2005 DIGILAW 1014 (AP)

Rehanulla Siddique v. State Of A. P.

2005-10-27

body2005
K. C. BHANU, J. ( 1 ) THIS appeal is directed against the judgment rendered in S. C. No. 50 of 2002 on the file of the Metropolitan Sessions Judge, visakhapatnam, dated 1. 9. 2003 whereunder the learned Sessions judge found both the appellants guilty for the offence under section 302 read with 34 I. P. C. , and Section 302 I. P. C. , respectively and sentenced them to undergo imprisonment for life. ( 2 ) THE Inspector of Police, Law and Order Police Station, visakhapatnam, filed charge sheet against both the accused stating that on 8. 11. 2000 at about 5. 00 p. m. , the accused caused the death of one Mark Gameze, by stabbing him with a knife. ( 3 ) THE brief facts of the case that are necessary for the disposal of the present appeal may be stated as follows: ( 4 ) ON 8. 11. 2000, at about 4. 30 P. M. , the deceased left the house and after going a few yards away from there, PW. 5 stopped him and questioned him as to why he has spoken ill about him to the 1s1 accused. The deceased totally denied the same and called out the 1st accused for confirmation. Then, A1 came out of his house and entered into an altercation with the deceased over the subject. Then the deceased and A1 grappled with each other and the neighbours on hearing the cries separated them. Thereafter, A1 called out his brother, A2, who took out a knife and stabbed the deceased on the chest while A1 held him. Thereafter, the deceased was shifted to Government hospital where he was succumbed to injuries. On the report given by P. W. 1, police registered a case in Crime No. 276 of 2000 under Section 302 read with 34 I. P. C. Thereafter, inquest was held on the dead body. The scene of offence was observed in the presence of mediators. After inquest, the dead body was subjected to post mortem examination. The doctor who conducted autopsy opined that the deceased died as a result of stab injury to the chest penetrating into the thoracic and abdominal cavities causing stab injury to the liver due to shock and haemorrhage. On the confessional statement of A2, weapon of offence was recovered and after completion of investigation, police filed charge sheet. The doctor who conducted autopsy opined that the deceased died as a result of stab injury to the chest penetrating into the thoracic and abdominal cavities causing stab injury to the liver due to shock and haemorrhage. On the confessional statement of A2, weapon of offence was recovered and after completion of investigation, police filed charge sheet. ( 5 ) A charge under Section 302 I. P. C. was framed against A1 and a charge under Section 302 I. P. C. read with 34 I. P. C. was framed against A2. But, however, the charges so framed were altered and charges were framed under Section 302 I. P. C. , read with 34 I. P. C. , and Section 302 I. P. C. , respectively, against A1 and A2. The charges were read over and explained to the accused. The accused pleaded not guilty and claimed to be tried. ( 6 ) IN order to substantiate the case of the prosecution, 13 witnesses were examined and Exs. P1 to P14 were marked. Besides this, case properties Mos. 1 to 10 were marked. The trial Court having accepted the evidence of P. Ws. 3 to 5, found the accused guilty of the charges levelled against them. Accordingly, the trial court convicted the accused and sentenced them to undergo imprisonment for life. ( 7 ) LEARNED counsel for the appellants-accused contended that there are number of discrepancies in the evidence of P. Ws. 3 to 5 and the entire case of the prosecution is in total variation with the contents in Ex. P1 and that A1 did not share any common intention with A2 so as to cause any injury to the deceased and in a sudden quarrel, altercation had taken place with regard to a trivial matter. He, further contended that since there was no previous enmity between the appellants-accused and the deceased and in the sudden quarrel that took place, A2 took out the knife and caused the injury and therefore it cannot be said that A2 caused the injury with an intention to cause death of the deceased. He further contended that since A1 was not armed with any weapon, it cannot be said that A1 was having any intention to cause the death of the deceased. He, therefore, prays to allow the appeal. He further contended that since A1 was not armed with any weapon, it cannot be said that A1 was having any intention to cause the death of the deceased. He, therefore, prays to allow the appeal. ( 8 ) ON the other hand, learned Public Prosecutor contended that from the evidence of P. Ws. 3 to 5, it is very clear that A2 has stabbed the deceased with a knife while A1 was holding the deceased. The wound caused by A2 penetrated not only through the chest but it also caused incise injury to the liver thereby causing instantaneous death of the deceased and hence A1 shared common intention with A2. He, therefore, contended that the accused were rightly convicted by the trial court. Hence, he prays to dismiss the appeal. ( 9 ) P. W. 8 is one of the inquest mediators who was present at the time when the police conducted inquest on the dead body. The inquest mediators opined that the death of the deceased occurred due to the injury caused to the chest. After inquest, the dead body was subjected post-mortem examination by P. W. 9. Ex. P3 is the post-mortem certificate. ( 10 ) THE doctor found the following ante-mortem injuries:"1. An obliquely placed wedge shaped stab injury of 2 x 3/4th cm. , present on front right lower part of chest 23 c. m. below right collar bone region and 7 c. m. , to the right of mid line. The wound track is directed enterio posteriorly and above downwards and medial, cut through skin, subcutaneous tissues, musculature on right front part of the chest, cut through right 7th rib costal cartilage passed through right 6th inter coastal space, right thoracic cavity, passed through and through right dome of diaphragm and caused stab injury of 1. 3/4th x 1/4 x 4 cms. , on front of right lobe of liver, peritoneal cavity contain 1800 ml. , of blood. Approximate depth of stab injury is 12 cms. , 2) Multiple small abrasions present on back of right elbow right wrist and hand regions. 3) A1l the above injuries are fresh and red in colour. He also found the following internal injuries on the body of the deceased: "brain and lungs are edematous and stomach was empty". , of blood. Approximate depth of stab injury is 12 cms. , 2) Multiple small abrasions present on back of right elbow right wrist and hand regions. 3) A1l the above injuries are fresh and red in colour. He also found the following internal injuries on the body of the deceased: "brain and lungs are edematous and stomach was empty". The doctor opined that the deceased appeared to have died because of the stab injury caused to the chest penetrating into thoracic and abdominal cavity causing stab injury of liver-haemorrhage and shock. The cause of the death as spoken to by P. W. 9 and recitals in Ex. P3 remain unchallenged. ( 11 ) THE only question is whether the accused are the assailants of the deceased. P. Ws. 3 to 5 are the eye witnesses to the incident. They have stated in their evidence that on 8. 11. 2000 at about 4. 30 p. m. , P. W. 4, Kanakaraju, enquired the deceased as to whether the deceased said some thing bad against him to A1. Then the deceased replied that he did not say anything bad against him to A1 and enquired him what was the matter. Then P. W. 4 told the deceased that A1 has informed him that the deceased had commented about him saying that he was a head strong person. The deceased denied the same. Thereafter, the deceased went to the house of A1 which was situated opposite to the house of A1 and called A1 to come out. Thereafter, A1 came out from the house. P. W. 4 asked him whether the deceased said something against him to A1. Then a1 informed him that the deceased did not say anything. Then P. W. 4 commented A1 that he was changing words. Then, A1 abused the deceased as bastard and for such a small thing why he had called him out. Thereafter, the deceased caught hold of the filt of the shirt of A1 and both exchanged blows. P. Ws. 3 and 4 separated them. In that process, a1 fell down on the floor. Again, A1 got up and held the filt of the deceased and beat him. At that time, the father of the deceased called the deceased back to the house. Thereafter P. W. 3, the deceased and p. W. 4 went into the house. P. Ws. 3 and 4 separated them. In that process, a1 fell down on the floor. Again, A1 got up and held the filt of the deceased and beat him. At that time, the father of the deceased called the deceased back to the house. Thereafter P. W. 3, the deceased and p. W. 4 went into the house. When the deceased came out of the house, a1 abused the mother of the deceased in a filthy language. Again the deceased beat A1. Then A1 fell down. A1 again got up and caught hold of the hands of the deceased from behind. In the meanwhile, A2 stabbed the deceased with a knife on his chest. This version is consistent in so far as P. Ws. 3,4 and 5 are concerned. However, since the incident has taken place at about 4. 30 P. m. , in a broad day light, it was not difficult to identity the assailants of the deceased. Since the incident was preceded by a small quarrel, there is every possibility for P. Ws. 3 to 5 to witness the incident. They are the natural witnesses to be present at the time of the incident and there are no other reasons to disbelieve their evidence. After lengthy cross-examination, nothing has been elicited to discredit the testimony of P. Ws. 3 to 5. Their evidence is convincing and perhaps this is the reason why the trial Court also placed implicit reliance on the testimony of these three witnesses. ( 12 ) P. W. 1 is the mother of the deceased. In her evidence, she stated that A1 caught hold of the deceased from behind and then A2 stabbed the deceased with a dagger on the chest. Since the incident took place in front of the house of the deceased, P. W. 1 is the natural witness to be present at that time. Since the incident is preceded by a quarrel and altercation, there is every possibility for this lady to come out from the house and to witness the incident. Therefore, there is no other reason for us to disbelieve the evidence of P. Ws. 3;4 and 5. ( 13 ) NOW, what is to be seen is whether A1 shared common intention with A2 to kill the deceased, so as to find him guilty by invoking Section 34 of the Indian Penal Code ? Therefore, there is no other reason for us to disbelieve the evidence of P. Ws. 3;4 and 5. ( 13 ) NOW, what is to be seen is whether A1 shared common intention with A2 to kill the deceased, so as to find him guilty by invoking Section 34 of the Indian Penal Code ? ( 14 ) THE common intention pre-supposes prior concert of minds or pre arranged plan. Sometimes it may also divulge at the spot. On this aspect, it is pertinent to refer to a decision of the Supreme Court, relied upon by the learned counsel for the appellants, in RAMASHISH yadav vs. STATE OF BIHAR and OTHERS, AIR 1999 SC 3830 . "section 34 lays down a principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The distinct feature of Section 34 is the element of participation in action. The common intention implies acting in concert, existence of a pre-arranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. It requires a pre-arranged plan and it presupposes prior concert. Therefore, there must be prior meeting of minds. The prior concert or meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. It can also be developed at the spur of the moment but there must be a pre-arrangement or premeditated concert. ( 15 ) BEARING the above principle in mind, what is to be seen is whether a1 shared the common intention with A2, to do away the life of the deceased. There is no prior enmity between A1 and the deceased. At the lime of incident, A1 was not armed with any weapon. If really, A1 had any intention to kill the deceased or entertained grouse against the deceased, certainly there is scope or possibility for A1 to have a weapon in his hands. When the deceased was called inside the house by the father, at that time, if really, A1 entertained grouse or enmity against the deceased, certainly he would have brought some weapon from his house and would have attacked the deceased. When the deceased was called inside the house by the father, at that time, if really, A1 entertained grouse or enmity against the deceased, certainly he would have brought some weapon from his house and would have attacked the deceased. He did not bring any weapon from his house. When the deceased came out of the house A1 caught hold of him and there is scuffle between A1 and the deceased. In that scuffle, the deceased pushed A1, as a result, A1 fell down. Then A1 again gof up and held the hands of the deceased from behind. It is at that lime, A2 gave a blow on the chest of the deceased with a knife which was taken out from his back pocket. If really, A1 shared the common object or he had such an intention, he would have definitely instigated A2 to cause injury or to stab him. A1 did not utter any word with A2 either to cause an injury or to stab the deceased. The quarrel preceded as a result of making comments by the deceased about P. W. 4 to A1. A1 and the deceased were not having any other disputes whatsoever. When P. W. 4 commented A1 that he was changing his words, A1 abused the deceased as a bastard. So on the spur of the moment, A1 caught hold of the filt of the shirt of the deceased. In these circumstances, we are of the opinion that it is not a case where A1 shared the common intention with a2 so as to do away the life of the deceased since there was no previous enmity between A1 and the deceased, except catching hold of the hands of the deceased. A1 did not cause any other injury or tried to beat the deceased in any manner whatsoever. Therefore, certainly, it is a case where in a sudden quarrel for a trivial matter, A2 took out the knife from his back pocket and caused injury on the chest of the deceased. Therefore, the act of A1 does not fall under Section 34 of the I. P. C. , so as to find him guilty for vicarious liability. Therefore, certainly, it is a case where in a sudden quarrel for a trivial matter, A2 took out the knife from his back pocket and caused injury on the chest of the deceased. Therefore, the act of A1 does not fall under Section 34 of the I. P. C. , so as to find him guilty for vicarious liability. ( 16 ) WITH regard to the act committed by A2, whether it falls within the meaning of culpable homicide amounting to murder or not, learned counsel for the appellant contended that A2 caused only single injury in a sudden, quarrel with regard to a trivial matter and that injury proved to be fatal and therefore the act of A2 would be an offence under Section 3,04 part-II I. P. C. , but, not under Section 302. He placed reliance on the decision of the Supreme Court in BHERA vs. STATE OF RAJASTHAN and others, 2000 SCC (Crl.) 1230. wherein the Supreme Court held that:"from the evidence of P. Ws. 2 and 3 it is crystal clear that the accused and the deceased had some quarrel in the house of Bhana. On the road while they quarrelled with each other, suddenly the accused brought out the knife and gave the blow which struck the chest of the deceased. On these facts, it is difficult to hold that the accused gave the blow with the requisite intention of causing murder of the deceased. In this view of the matter, the conviction of the appellant under Section 302 cannot be sustained. Since in anger while quarreling, the accused had given the blow which ultimately resulted in the death of the deceased, the offence would be one under Section 304 Part II. We, therefore, set aside the conviction of the appellant under Section 302 and instead convict him under Section 304 Part II and sentence him to 5 years. " ( 17 ) HE also placed reliance upon another decision of the Supreme Court in tholan vs. STATE OF TAMIL NADU and OTHERS, AIR 1984 SC 759 . wherein it is held that :"no malice has been alleged to have been entertained by the accused towards deceased Sampath. The Incident occurred on the spur of the moment. It appears that the house of the deceased Sampat was somewhere near the house In which the organisers or at least one of them was residing. wherein it is held that :"no malice has been alleged to have been entertained by the accused towards deceased Sampath. The Incident occurred on the spur of the moment. It appears that the house of the deceased Sampat was somewhere near the house In which the organisers or at least one of them was residing. Appellant had his dispute and grievance with the organisers of the chit. It is the prosecution case that accused abused organisers of the chit. Deceased Sampat is not shown to be the organiser of the chit. Probably when the deceased Sampat told the accused not to misbehave In the presence of ladies and not to use vulgar and filthy language the appellant retorted by questioning the authority of Sampat to ask him to leave the place. Presence of Sampat Is wholly accidental. A1tercation with Sampat was on the spur of the moment. Even the meeting was accidental. There arose a situation In which appellant probably misguided by his own egocentric nature ob|ecled as to why sampat should ask him to leave the place and in this background he gave one blow with a knife which landed on the right side chest of the deceased, which has proved fatal. Could the appellant be said to have committed murderl In other words, whether Part I or Part III of S. 300,i. P. C. would be attracted in the facts of this case. " ( 18 ) A2 has nothing to do with the quarrel that took place preceding the incident. At the time when A1 was holding the hands of the deceased, A2 came there and stabbed the deceased on the chest. There was no previous enmity between A2 and the deceased except to the fact that some altercation took place between the brother of A2 and the deceased preceding the incident. So, in these circumstances, A2 being a young boy aged about 25 years, took a knife from his back pocket and stabbed the deceased, the blow was so severe that it caused the death of the deceased. ( 19 ) BUT, in the facts and circumstances of the case, we are of the opinion that A2 did not cause that injury with an intention to kill the deceased or with a knowledge that such injury would likely to cause the death of the deceased. ( 19 ) BUT, in the facts and circumstances of the case, we are of the opinion that A2 did not cause that injury with an intention to kill the deceased or with a knowledge that such injury would likely to cause the death of the deceased. In these circumstances, since the injury has been caused in a sudden quarrel and that there was no enmity between A2 and the deceased, we are of the opinion that the act of A2 clearly falls under Section 304 Part-II I. P. C. , but not under 302. ( 20 ) ACCORDINGLY, the conviction and sentence recorded against appellant No. 1-A1, under Section 302 read with 34 I. P. C. , is set aside and he shall be released forthwith, if not required in any other case. So far as the conviction and sentence recorded against Appellant no. 2-accused No. 2 under Section 302 I. P. C. , is concerned, the same is also set aside. However, Appellant No. 2-Accused No. 2 is convicted under Section 304 Part-II I. P. C. , and sentenced to undergo Rigorous imprisonment for seven (7) years. The period of sentence undergone by A2 during the trial, investigation and after judgment shall be given set off under Section 428 of the Code of criminal Procedure. The appeal is accordingly allowed in part.