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2024 DIGILAW 671 (TS)

Md. Amjad Hussain, Medak v. SHO, Medak Town P. S.

2024-09-05

ANIL KUMAR JUKANTI, K.SURENDER

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JUDGMENT : (K. Surender, J.) This appeal is directed against the Judgment of conviction and sentence dated 31.07.2015 in S.C.No.86 of 2015 on the file of the VIII Additional District and Sessions Judge at Medak, whereby, appellant/accused was sentenced to undergo life imprisonment and to pay fine of Rs.500/-, in default simple imprisonment for six months for the offence under Section 302 of Indian Penal Code (for short ‘IPC’). 2. According to the prosecution case, the deceased had two younger brothers, who are the appellant and another namely Mohd. Hussain. The deceased was working as bus driver in APSRTC and retired in the year 2002. He alone constructed the house in the Indira Colony, Medak and stayed along with PW.1/wife and PW2/daughter and another daughter namely Farhana. According to PWs.1 and 2, on the date of the incident in the evening the appellant quarreled with the deceased demanding share in the house and threatened to kill him. During the said quarrel, it is alleged that the appellant took out a long knife (Lamba Chaku)/MO.1 and stabbed the deceased on the left thigh. As a result of the injury that was caused with the knife, according to PW.8/Doctor, the death occurred due to cut of arteries. The injuries received by the deceased are 1) Deep cut stab injury present in left thigh, 2) Stab injury ¾ inch and 6 inch depth and width 1/4th inch, length ¾ inch, which present in posterial compartment of thigh which enter into deep structure and cut the following muscles and artery’s and i) Posterial compartment biceps fermories muscle ii) Femoral arteries, veins, and nerves and follow anterior compartment quadriceps muscles anteriority sartorious muscles anteriorly. Sharp weapon enter through posterior compartment of thigh and exit from the wound length 2/4 x ¼ inches width. Large columns of blood loss throw deep cut on femoral artery. 3. After the assault, PW.1 lodged a complaint with the police. Even before the deceased/injured was taken to the hospital, the deceased died in the verandah of the house. 4. Learned Sessions Judge having examined PWs.1 and 2, who are the eye witnesses to the incident found that there was deliberate intention on the part of the appellant to cause death of the deceased, though a quarrel ensued between them, prior to attack by appellant. The appellant was convicted for the offence of murder. 5. 4. Learned Sessions Judge having examined PWs.1 and 2, who are the eye witnesses to the incident found that there was deliberate intention on the part of the appellant to cause death of the deceased, though a quarrel ensued between them, prior to attack by appellant. The appellant was convicted for the offence of murder. 5. Learned counsel appearing for the appellant would submit that the appellant was falsely implicated though the appellant did not cause any injuries on the deceased. In fact, there is a discrepancy regarding the weapon that was used at the time of alleged assault. Initially, it was stated that it was a knife with tape on it, but knife produced in the Court is with a wooden handle. In the said circumstances, prosecution has failed to prove that the weapon with which the injury was caused is the same weapon seized during investigation. In the background of disputes between the appellant, false implication cannot be ruled out. 6. On the other hand, the learned Additional Public Prosecutor appearing for the State would submit that PWs.1 and 2 are the eye witnesses to the incident. There is no reason why they would speak false against the appellant, who is the brother of the deceased. The factum of disputes between brothers regarding the property is not disputed. In view of the evidence of PWs.1 and 2 which was not shaken in any manner in the cross examination, the conviction has to sustain. 7. PWs.1 and 2 have specifically stated regarding the manner in which the assault had taken place. The appellant assaulted the deceased with a long knife which was marked as MO.1, during evidence before Court. Admittedly, there were disputes regarding the property in between brothers i.e. appellant, deceased and another brother namely Mohd. Hussain. There is no reason why PWs.1 and 2 would involve the appellant, if third person had caused the injury. In fact, the defence that was taken by the appellant is that he was falsely implicated in the case. Nothing was adduced during cross examination of PWs.1 and 2 to discredit their version. In fact, suggestion was made that the appellant was residing in the said house with the consent of the deceased and without any force. The evidence of PWs.1 and 2 was contrary to the defence and admittedly there was fight amongst brothers. Nothing was adduced during cross examination of PWs.1 and 2 to discredit their version. In fact, suggestion was made that the appellant was residing in the said house with the consent of the deceased and without any force. The evidence of PWs.1 and 2 was contrary to the defence and admittedly there was fight amongst brothers. The said motive was spoken by PWs.1 and 2 and also PW.6, who acted as inquest panch and PW.6’s evidence is based on statement of witnesses examined during inquest. Though other independent witnesses who are PWs.3 and 4 turned hostile to the prosecution case, it will not have any bearing on the reliable testimony of the PWs.1 and 2. 8. The injury was caused on the thigh and not any vital part of the body. The attack was specifically on the thigh, as such, it can be inferred that the appellant wanted to injure the deceased seriously. He has not attacked on any other part of the body like head, stomach or any other vital part. 9. The Hon’ble Supreme Court in Mohd. Rafiq @ Kallu vs The State of Madhya Pradesh, (2021)10 SCC 706 , held as follows: “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 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 of 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 intention and knowledge among both the crimes”. 10. 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 intention and knowledge among both the crimes”. 10. In the present facts of the case, it appears that the attack was pursuant to the quarrel in between the deceased and the appellant in respect of the house property. As observed by the Mohd. Rafiq case (Stated supra), it appears that the degree of intention of appellant was not determinative as to cause the death of the deceased. However, the injuries were caused with knife on the thigh of the deceased. Accordingly, the conviction for the offence under Section 302 of IPC is hereby set aside and the appellant is convicted for the offence under Section 304-II of IPC. 11. Medical certificate dated 22.04.2024 is filed which is sent by the Medical Officer, Central Prison, Cherlapalli. Wherein, Medical Officer certified that the appellant was suffering from ill health. He had Urinary Incontinence, Coronary Artery disease, Cervical Degenerative disc disease and Lumbar Vertebral Disc Desiccation. In fact, he has undergone Coronary Angiogram and Stent’s (02) was placed at NIMS, Panjagutta. He was undergoing regular follow-up with Cardiology, Urology and Neurology department of Gandhi Hospital and NIMS hospital. In the said circumstances, this Court is inclined to impose the sentence of imprisonment to the period already undergone. 12. Since, the appellant is in jail since 31.07.2015, which is nearly nine (09) years, the sentence of imprisonment is set off to the period already undergone. Appellant shall be set at liberty forthwith, if not required in any other case. The bail bonds, if any, furnished by him shall stnd cancelled. The fine component remains unaltered. 13. Accordingly, this Criminal Appeal is partly allowed.