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2022 DIGILAW 89 (AP)

Syed Fayaz, Ananthapur Dist. v. P. P. , Hyd

2022-01-21

C.PRAVEEN KUMAR, K.MANMADHA RAO

body2022
JUDGMENT : C.Praveen Kumar, J. Heard through Video Conferencing. 2. The present appeal came to be filed challenging the conviction and sentence dated 09.07.2015 passed in S.C.No.477 of 2014 on the file of the Court of learned Family Court - cum - Additional Sessions Judge, Ananthapuramu, wherein and whereunder the sole accused, who was tried for an offence punishable under Section 302 I.P.C., for causing the death of one Shaheen Taj (hereinafter, referred to as “the deceased”) on the 22.01.2013 by throttling her neck. Vide judgment, dated 09.07.2015, the learned Additional Sessions Judge convicted the accused for the offence punishable under Section 302 I.P.C. and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default of payment of fine, to undergo simple imprisonment for a period of six months. Challenging the conviction and sentence imposed by the learned Additional Sessions Judge, the sole accused preferred this Criminal Appeal under Section 374 Cr.P.C. 3. The facts, as culled out from the evidence of the prosecution witnesses, are as under: P.W.1 is the mother of the deceased and P.W.2 is the son of P.W.1 and brother of the deceased. The husband of P.W.1 died about 10 months prior to the date of incident. After the death of her husband, P.W.1 and her children planned to sell away their own house, which was acquired by her from her grandmother. On coming to know about the same, the accused and his family requested P.W.1 to lend an amount of Rs.2,00,000/- to them for purchase of some house site. Since the accused and his family members are close relatives of P.W.1, she promised to give them an amount of Rs.2,00,000/- as loan on finalization of the sale. It is said that P.W.1 has not paid the amount as the sale of the house was not finalized. 4. The material on record also shows that the house, where P.W.1 is residing belongs to her maternal grandmother, which at the time of incident, stood in the name of P.W.1. While husband of P.W.1 was alive, she along with her husband entered into an agreement of sale in favour of one Doop Singh for an amount of Rs.40,00,000/-. It is said that an amount of Rs.10,00,000/- was paid as an advance and thereafter, disputes arose. 5. While husband of P.W.1 was alive, she along with her husband entered into an agreement of sale in favour of one Doop Singh for an amount of Rs.40,00,000/-. It is said that an amount of Rs.10,00,000/- was paid as an advance and thereafter, disputes arose. 5. While things stood thus, about two days prior to the date of incident, the accused came to the house of P.W.1 and enquired about the sale of the house. Thereafter on 22.01.2013, at about 7.30 p.m., the accused again came to the house of P.W.1 which is second floor and enquired about the sale of the house, for which, P.W.1 informed him that the sale is not finalized and she cannot lend the amount. At that time P.W.1, her son Mohammad Ghouse, aged about 10 years and her daughter Shaheen Taj, aged about 8 years were in the second room of the house. By then, her daughter, who was suffering from fever, asked P.W.1 a sum of Rs.3.00 to buy medicines. After receiving Rs.3.00, the deceased went from second room to first room of their house to go outside. The accused, who was with P.W.1 at that time, followed the deceased into first room. In the first room, the accused is said to have caught hold of the night dress (i.e. blouse) of the deceased, pulled her towards him, drew a knife from his pocket and slit the throat of the deceased. On hearing the cries, the tenants (P.W.3 and P.W.4) who run a shop in the adjacent portion of the house of P.W.1 and some others came to the first room of the house. On seeing them, the accused left the place by keeping the knife in his pocket. The girl fell down with blood oozing from her throat. P.W.3, P.W.4 and other persons, who came there called the auto and then shifted the deceased to Government General Hospital, Anantapuramu, where the doctors declared her as brought dead. 6. On the same day, i.e. 22.01.2013 at about 9.00 p.m., while P.W.8 - S.I. of Police was in the police station, he received a report from P.W.1 basing on which, he registered a case in Crime No.16 of 2013 under Section 302 IPC. Ex.P6 is the FIR. P.W.9, Inspector of Police on receipt of copy of FIR, took up investigation in the case. Ex.P6 is the FIR. P.W.9, Inspector of Police on receipt of copy of FIR, took up investigation in the case. He secured the presence of P.W.1 at the police station, recorded her statement under Section 161 Cr.P.C. and left the police station to the scene of offence. As it was late in the night, P.W.9 could not inspect the scene of offence and posted one constable to safeguard the scene. He then rushed to Government General Hospital, Anantapuramu, where he found the dead body kept in a mortuary. 7. On the next day, i.e. 23.01.2013, at about 6.30 a.m., he left the police station along with his staff and reached Government General Hospital, Anantapuramu, secured the presence of mediators and in their presence he conducted inquest over the dead body. During inquest, he examined Syed Mohammad Gouse - P.W.2, M.Dasarath Naik - P.W.4, and Ramavath Sreenivas Naik. Ex.P2 is the inquest report. Thereafter, P.W.9 inspector of Police prepared scene of offence, collected blood samples from the scene of offence and prepared observation report, which is placed on record as Ex.P7. He also prepared a rough sketch plan of scene of offence, which is marked as Ex.P8. After completing the proceedings, he sent the body for post-mortem examination. P.W.6 the Assistant Professor in the department of Forensic Medicine, conducted autopsy over the dead body on 23.01.2013 and issued Ex.P4 the post-mortem certificate. According to him, the cause of death is due to hemorrhagic shock resulting from cut throat injury. P.W.9, who continued with the investigation, arrested the accused on 28.01.2013 in the presence of mediators, viz. P.W.7 and P.W.10 and secured M.O.4 knife from his possession. Ex.P5 is the confession cum seizure mahazar of the accused. P.W.10, who took up further investigation in this case verified the investigation done so far and filed charge sheet, which was taken on file as P.R.C.No.85 of 2013 on the file of Additional Judicial Magistrate of First Class, Ananthapuramu. 8. On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C., were supplied to him. As the offence is triable by a Court of Sessions, the case was committed to the Court of the Sessions under Section 209 Cr.P.C. Accordingly, the same was made over to the Court of the learned Additional Sessions Judge, Ananthapuramu for trial and disposal in accordance with law. 9. As the offence is triable by a Court of Sessions, the case was committed to the Court of the Sessions under Section 209 Cr.P.C. Accordingly, the same was made over to the Court of the learned Additional Sessions Judge, Ananthapuramu for trial and disposal in accordance with law. 9. Basing on the material available on record, charge, as referred to earlier, came to be framed, read over and explained to the accused in Telugu to which, he pleaded not guilty and claimed to be tried. 10. To substantiate its case, the prosecution examined P.Ws.1 to 10 and got marked Exs.P-1 to P-10 and M.Os.1 to 4. After the closure of prosecution evidence, the accused was examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against him in the evidence of the prosecution witnesses to which he denied. No oral or documentary evidence was adduced on behalf of the accused. 11. Believing the evidence of P.Ws.1 to 4, coupled with medical evidence, the learned Sessions Judge convicted and sentenced the accused as mentioned supra. Challenging the same, the present appeal came to be filed by him. 12. Sri P. Veera Reddy, learned Senior Counsel representing Sri R.Harish Kumar, learned counsel for the appellant, would contend that there is no legal evidence available on record to connect the accused to the crime. According to him, P.Ws.1 and 2, who were examined as eyewitnesses to the crime, were not present at the scene and some unknown person committed the offence. To substantiate the same, learned Senior Counsel took us through the evidence of P.Ws.1, 2, 4 & 7. 13. He also relied on the statements made before the media, immediately after the incident. He further submits that the knife said to have been used in the commission of offence could not cause the injuries noted by the post-mortem doctor. From the evidence elicited in the cross-examination of the post-mortem doctor, learned Senior Counsel would submit that the injury found on the neck of the deceased would possible only by using heavy weapon and not with a knife, which is a light weight weapon. The learned Senior Counsel also submits that there is an amount of doubt as to whether P.W.4 was present and noticed the accused running away, as his signatures were taken on a paper which contains some written material, the contents of which are unknown to him. The learned Senior Counsel also submits that there is an amount of doubt as to whether P.W.4 was present and noticed the accused running away, as his signatures were taken on a paper which contains some written material, the contents of which are unknown to him. Under these circumstances, he would submit that a doubt arises as to whether really the accused was responsible for the death of the deceased. 14. On the other hand, Sri S.Dushyanth Reddy, learned Additional Public Prosecutor would contend that there is absolutely no reason to disbelieve the evidence of P.Ws.1, 2, 4 and 7. A plain reading of the evidence of the post-mortem doctor establishes that the injury found on the deceased could have been caused with the weapon used in the commission of offence. Apart from that, the learned counsel would contend that the evidence of the doctor is an opinion evidence and when the evidence of eye-witnesses establishes the involvement of the accused in the commission of offence, the medical evidence looses its significance. Hence, he would submit that the conviction and sentence imposed by the trial Court against the accused warrants no interference. 15. In reply, Sri P.Veera Reddy, learned Senior Counsel would contend that the prosecution has miserably failed to establish the usage of the weapon in the commission of offence, since the same was not put to P.Ws.1 and 2 for identification. 16. The point that arises for consideration is: “Whether the prosecution is able to bring home the guilt of the accused for the offence punishable under Section 302 I.P.C. beyond all reasonable doubt?” 17. POINT:- The accused is none other than the son of the brother-in-law of P.W.1, i.e., her husband’s brother. As seen from the material on record, while the husband of P.W.1 was alive, P.W.1 along with her husband entered into an agreement of sale of the house in which she is living along with her family, to one Doop Singh, for Rs.40,00,000/-. The said Doop Singh paid a sum of Rs.10,00,000/- as advance. Thereafter, the husband of P.W.1 died, as a result of which, disputes arose with regard to the sale of the said house. The accused, who is close relative of P.W.1, was visiting the house and requesting P.W.1 to pay an amount of Rs.2,00,000/- for purchase of some house property. The said Doop Singh paid a sum of Rs.10,00,000/- as advance. Thereafter, the husband of P.W.1 died, as a result of which, disputes arose with regard to the sale of the said house. The accused, who is close relative of P.W.1, was visiting the house and requesting P.W.1 to pay an amount of Rs.2,00,000/- for purchase of some house property. P.W.1 agreed for the same and informed him that she will give a sum of Rs.2,00,000/- as loan after the sale process is finalized. There is no dispute to the above facts. 18. It is also to be noted here and as fairly stated by learned Senior Counsel appearing for the accused that there is absolutely no enmity between the family of the accused and the family of P.W.1. Keeping these things in background, we shall now proceed to analyse the evidence with regard to the incident in question. 19. As seen from the evidence of P.W.1, two days prior to the date of incident, the accused came to the house of P.W.1 and enquired about the sale of the house. Thereafter, on 22.01.2013, the accused came to the house of P.W.1 at about 7.00 p.m. when she was in the second room of the house and again asked about the sale of the said house, to which, P.W.1 informed him that the sale is not finalized and she cannot lend an amount of Rs.2,00,000/- immediately. At that point of time, the deceased, who is the daughter of P.W.1 aged about 7/8 years requested P.W.1 to give a sum of Rs.3.00 for purchase of medicine as she was suffering with fever. P.W.1 gave Rs.3.00 to her to buy tablets. Thereafter, the deceased left the second room and was moving into the first room to go out of the house. The accused also left the second room informing P.W.1 that he is also going outside the house. Saying so, he followed the deceased from second room to first room. It is in the evidence of P.W.1 that she along with P.W.2 also followed the accused from second room to first room and while they were in the first room, the accused is said to have caught hold of the hair of the deceased, pulled her towards him, removed a knife from his pocket and slit the throat of the deceased. Having seen the incident, P.W.1 along with P.W.2 raised cries, which attracted the attention of the tenants who came there and saw the accused running away from the scene. The injured was shifted to Government General Hospital, Ananthapuramu, where she was declared brought dead. Thereafter, law was set into motion by lodging a report. The police came there and took P.W.1 to police station, where she lodged a report. P.W.1 was cross-examined at length, but nothing useful to discredit her testimony has been elicited. On the other hand, suggestions given to P.W.1 would establish the presence of the accused in the house of P.W.1 on that day. It would be appropriate to extract the said suggestion in the testimony of P.W.1., which are as under: “On the date of incident, the accused came to my house at 7.00 p.m. It is incorrect to suggest that I did not state to the police that the accused came to my house at 77.0 p.m. and talked with me about 20 to 25 minutes. My deceased daughter was suffering from since morning on that date. While myself and the accused are talking in the 2nd room, my deceased daughter came and asked me for money to buy the medicines.” 20. From the suggestions given to P.W.1 it stands established that the accused came to the house at 7.00 p.m., and when herself and accused were in the second room, the deceased came there and asked money to buy medicine. Therefore, the argument of the learned Senior Counsel for the appellant that some unknown person caused the death or that the accused never came to the house of P.W.1 on that day cannot be accepted. 21. An answer came to be elicited in the cross-examination of P.W.1, to the effect that upon hearing cries of the deceased, from the first room, P.Ws.1 and 2 went there. Taking advantage of the said answer, learned Senior Counsel would contend that P.Ws.1 and 2 could not have seen the incident. As she was sitting in the second room of the house, she could not see what was happening in the first room. But, it is to be noted that immediately after the said answer, the witness added that she had seen her deceased daughter when the accused caught hold of her daughter, that she raised cries and went there. As she was sitting in the second room of the house, she could not see what was happening in the first room. But, it is to be noted that immediately after the said answer, the witness added that she had seen her deceased daughter when the accused caught hold of her daughter, that she raised cries and went there. It was further elicited that she had seen the incident from a distance of 6 to 7 feet, but could not rescue her daughter. It would be appropriate to extract the relevant portion for better appreciation:- “Soon after hearing the cries of my deceased daughter from the 1st room, I went there. The witness adds that she has seen her deceased daughter and accused following her by sitting in the 2nd room, meanwhile the accused caught hold my daughter and that she raised cries and that I went there. I have seen the incident from a distance of 6 to 7 feet and that I could not rescue my daughter.” 22. Therefore, these answers elicited in the cross-examination of P.W.1 establish the presence of the accused in the house at the time of incident and his participation in the commission of offence. It may not be necessary for us to go into the other part of cross-examination, since the suggestions given in the answers elicited do not touch the incident in question. 23. P.W.2 is the son of P.W.1 and brother of the deceased. He in his evidence deposed that on 22.01.2013 at about 7.00 p.m., the accused came to their house for money as his mother promised to give an amount of Rs.2,00,000/- to the accused and his family towards loan. As money could not be adjusted, his mother informed to the accused that she will lend the amount after some days. His evidence also discloses that while the accused was talking with his mother in the T.V.room, himself and his sister, i.e. the deceased were also in the room and his sister asked money for medicine. According to him, after receiving money from P.W.1, his sister (deceased) left the second room and went to the first room to go outside the house. Meanwhile, the accused after taking leave from his mother (P.W.1), went to first room of their house. Then they heard the cries of his sister. According to him, after receiving money from P.W.1, his sister (deceased) left the second room and went to the first room to go outside the house. Meanwhile, the accused after taking leave from his mother (P.W.1), went to first room of their house. Then they heard the cries of his sister. Himself and his mother went into the first room and found the accused holding the deceased and slitting the throat of the deceased with a knife. 24. According to him, on hearing their cries, other persons who were present at that time in their premises came there and saw the accused running away. Thereafter, they took the deceased in an auto to the hospital, where she was declared brought dead. P.W.2 was cross-examined, but nothing useful came to be elicited to descredit his testimony. 25. P.W.4 is another witness, who came to the scene of offence on hearing the cries. He was a tenant in that first floor portion of P.W.1’s house and running a cloth shop abutting to his portion in the first floor. According to him, on 22.01.2013 at about 7.20 p.m., when himself and his brother were standing in front of their cloth shop in the corridor, the accused came and went into the house of P.W.1. Within ten minutes, they heard cries from the family members of P.W.1 from inside their portion. Meanwhile, the accused came out of the portion hurriedly, holding knife. They tried to catch him but he skulked away. Thereafter, P.W.4 and others went inside the house and found the injured with injuries. On enquiry, P.W.1 informed to him that the accused, who is son of her brother-in-law, slit the throat of the deceased and ran away. Thereafter, they took the deceased to the hospital. P.W.4 was also cross-examined. All the suggestions given with regard to their presence and their making an effort to catch hold of the accused were denied. 26. From the evidence of this witnesses also, it stands established that it was the accused, who came to the house of P.W.1 on that day and it was he, who was responsible for the death of the deceased. As observed earlier, the suggestions given to P.W.1 stand proved beyond doubt that the accused went to the house of P.W.1 on that day and caused the death of the deceased. As observed earlier, the suggestions given to P.W.1 stand proved beyond doubt that the accused went to the house of P.W.1 on that day and caused the death of the deceased. Though learned Senior Counsel would contend that the accused did not enter the house of P.W.1 on that day and that P.Ws.1 and 2 not present in the house, it stands established beyond doubt that the accused was responsible for the death of the deceased. In fact, we have perused the entire cross-examination of P.Ws.1 and 2. Nowhere in the cross-examination, any motive is suggested to speak falsehood against the accused. In fact, P.W.4 is an independent witness, who does not even know the relationship between P.W.1 and the accused. 27. Having regard to the above, we see no reason to disbelieve the evidence of P.Ws.1, 2 and 4. At this stage, learned counsel tried to contend two things, namely the statements made by witnesses to the media after the incident and the prosecution failing to make any effort to show the weapon used in the commission of offence to P.W.1. Apart from that, he would contend that the evidence of doctor is not placed for cross-examination. In so far as the statements made to media are concerned, P.W.1 in her cross-examination stated as under:- “At about 8.30 p.m. the Media came to the hospital. I narrated the incident to the Media at the Hospital. I narrated the incident to the police. Police reduced the same in to writing and I subscribe in it. It is incorrect to suggest that I stated to the Media that while I am preparing food in the kitchen the incident took place in the first room.” 28. P.W.3 in his cross-examination stated as under: “I am residing at Arveti Nagar at Gooty road. On seeing the T.V. news about the death of the deceased girl, I went to the Government Hospital. In the T.V.news the girl was killed by unknown person. I am tenant in the house opposite to the house of the deceased for a period of five years.” 29. These are the two admissions in the evidence of P.Ws.1 and 3, which are sought to be relied on by the learned counsel to show that the earliest version of the witnesses was something else, meaning thereby that some unknown person killed the deceased. 30. These are the two admissions in the evidence of P.Ws.1 and 3, which are sought to be relied on by the learned counsel to show that the earliest version of the witnesses was something else, meaning thereby that some unknown person killed the deceased. 30. Coming to the answer elicited through P.W.1, a reading of the suggestions and answers elicited in the evidence of P.W.1 indicate that at about 7.30 p.m. she narrated the incident to the media at hospital. The contents of the narration are not elicited. On the other hand, it is very clear that incident was narrated. 31. The next answer to the question is that P.W.1 narrated the incident to the police also, which was reduced into writing and she scribed on it. She denied the suggestion that she stated to the media that while she was entering into the first room, the incident took place. Therefore, the suggestions and answers elicited through P.W.1 in our view may not be of any help to the accused. 32. Further, a suggestion and answer through P.W.3 namely that on seeing the TV news, he went to the hospital and in the TV news, it was mentioned that the girl was killed by some unknown person. First of all, it was not elicited to P.W.3 as to the channel, which telecasted or published the said news. Secondly, there is no evidence on record as to the time when this news item was telecasted and what was the basis for the said news item to say that the girl was killed by some unknown person. We can, without any hesitation, say that no importance be given to these admissions more so to these news items. In fact, the argument of the learned Public Prosecutor that the publications in the media cannot have any weight as they are inadmissible in evidence cannot be brushed aside, unless proved by examining the concerned. 33. Having regard to the above, this piece of evidence which the learned Senior Counsel intends to rely upon to say that an unknown person caused death cannot be accepted. 34. Coming to the plea that the weapon used in the commission of offence was not shown to P.W.1, the same, in our view, may not go to the root of the matter. 34. Coming to the plea that the weapon used in the commission of offence was not shown to P.W.1, the same, in our view, may not go to the root of the matter. The evidence of P.Ws.1, 2 and 4, who are not having any motive or enmity to speak falsehood against the accused categorically deposed in their evidence about the weapon used in the commission of the offence. Their version corraborates with the evidence of the post-mortem doctor, who in his evidence speaks about one injury on the body of the deceased, which is as under: “Cut laceration transversely extended from the front of the right side neck on to the front of the neck to left side front of the neck.” 35. The said version of the post-mortem doctor gets impression from the evidence of eye witnesses, which cannot be doubted. Not showing the weapon used in the commission of offence to P.W.1 or P.W.2 in our view may not be fatal to the facts of the case. 36. Coming to the admissions in the cross-examination, with regard to the nature of injuries and also as to whether the weapon, viz., the knife could have caused those injuries, we are of the view that the evidence of the doctor is only an opinion evidence. In fact, the Hon’ble Supreme Court in KRISHNAN AND OTHERS v. STATE, REP.BY INSPECTOR OF POLICE, 2003(3) ACR 2384(SC) and STATE OF U.P. v. HARI CHAND, 2009 Crl.L.J.3039 has held that the evidence of the doctor with regard to the nature of injuries and cause of death would only be opinion evidence and if the evidence of eyewitnesses inspires confidence, the same will travel over the evidence of the postmortem doctor. 37. Though the post-mortem doctor in his evidence said many things about the injuries and as to whether the knife could have caused injury, but in the last line of cross-examination, he stated as under: “It is incorrect to suggest that by using a light weight weapon like a knife cut lacerations are not possible much less with uniform depth of injuries all through.” 38. Therefore, the argument of the learned counsel for the appellant that the knife, which is alleged to have been seized could not have caused the injury as mentioned in the report, cannot be accepted. 39. For the above said reasons, the appeal is liable to be dismissed. 40. Therefore, the argument of the learned counsel for the appellant that the knife, which is alleged to have been seized could not have caused the injury as mentioned in the report, cannot be accepted. 39. For the above said reasons, the appeal is liable to be dismissed. 40. Accordingly, the Criminal Appeal is dismissed confirming the conviction and sentence passed by the learned Judge, Family Court - cum - Additional Sessions Judge, Ananthapuramu, vide judgment, dated 09.07.2015, in Sessions Case No.477 of 2014 for the offence punishable under Section 302 I.P.C. Miscellaneous petitions pending, if any, in this Criminal Appeal shall stand closed.