IN THE COURT OF VII ADDITIONAL DISTRICT & SESSIONS JUDGE, VIJAYAWADA cum
IV ADDITIONAL METROPOLITAN SESSIONS JUDGE, VIJAYAWADA
Present: Sri T.Venugopal Rao XII Addl. District & Sessions Judge cum VI Additional Metropolitan Sessions Judge, FAC : VII Additional District Judge cum IV Additional Metropolitan Sessions Judge, Vijayawada
Monday, this the 9th day of April, 2018
SESSIONS CASE No.52 of 2017
(P.R.C.No.08/2017 Order dated 11.05.2017 on the file of IV Additional Chief Metropolitan Magistrate, Vijayawada in Cr.No.66/2017 of Ibrahimpatnam Police Station, Vijayawada City.
Between :
State : Inspector of Police, Ibrahimpatnam Police Station, Vijayawada City. …Complainant.
And
ALLAELDEEN IBRAHIM HAMED MAHMOUD,
S/o.Ibrahim Hamed, 21 years, Caste by Muslim, Native of Elazhuri,Khatoum, Sudan Country, Present at D.No.13-55, 2ndfloor, Varla Bazar, Ferry Road,
Ibrahimpatnam....Accused
Charge:Under Section 302 IPC.
Plea of the accused:NOT GUILTY.
Finding of the Court:FOUND GUILTY
Sentence of Order:In the result, ACCUSED IS FOUND GUILTY for the offence punishable under section 302 IPC and he is convicted under section 235 (2) Cr.P.C. for the offence punishable under section 302 IPC. The accused is convicted under section 235 (2) Cr.P.C., and sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs.1,000/- (Rupees One Thousand Only) in default of payment of such fine, shall undergo simple imprisonment for two-months. Mos.1 to 7 shall be destroyed after appeal time is over. The accused has been in Judicial custody from 02.02.2017 till today and he is entitled to set-off the period of detention undergone as Under Trial Prisoner subject to provision of Section 433-A read with 432 or 433 Cr.P.C. The accused was also informed about his right to pray appeal.
= = = 2 VII Addl.Dist., & Sessions Court, Sessions Case No.52/2017 Vijayawada. Dated 09.04.2018 --------------------------------------------------------------------------- This Sessions Case coming on 27.03.2018 for final hearing before me in the presence of Mr.L.China Israel, Additional Public Prosecutor, on behalf of the prosecution, and of Mrs.P.Sreedevi, S.Sravanthi and V.Prasanna,
Advocates for Accused, and the matter having stood over for consideration till this day, this Court delivered the following :-
J U D G M E N T
1.The case as unfurled from prosecution is that Bodredin Abdulla
Mohammad [LW1], son of Abdulla Mohammad, student of Nova College,
Ibrahimpatnam gave a report to the Station House Officer, Ibrahimpatnam
Police Station stating that he along with Mohammad Saifuddin [LW3], Osama
Basheer [LW2], Mohammed Elmgtaba Abdel Gabar Hussain Osman [deceased] were roommates and whereas Allaeldeen Ibrahim Hamed Mahmoud [accused] and Amar were roommates and resided in second floor of the house bearing
D.No.13-55, Varla Bazar, Ibrahimpatnam that on 30.01.2017 at about 08.00
PM all his roommates after taking dinner and were busy in their personal works, at about 12 midnight, Mohammed Elmgtaba Abdel Gabar Hussain
Osman [deceased] went outside of his room that after 20 or 30 minutes they heard some sound from the other room that in the meanwhile they found the deceased at the entrance of their portion keeping his hands near stomach with pool of blood on his shirt that immediately they asked him what had happened, but he did not give any reply that he was also breathless and in the meanwhile,
Allaeldeen Ibrahim Hamed Mahmoud [accused] came there and told them that while he was sleeping the deceased came and knocked the door and entered into his room and demanded him to pay Rs.16,000/- that he refused to discharge the debt on the day that in meanwhile, there was an altercation and while so, he took a knife and stabbed in his stomach that immediately the deceased was shifted to Nimra Hospital, Ibrahimpatnam on a bike for treatment and then to Andhra Hospital, Gollapudi by auto where he was declared as dead that the motive for the incident is the demand of deceased to return the hand-loan of Rs.16,000/- at that dead-night.
2.Basing on the report of Bodredin Abdulla Mohammad [LW1],
Ibrahimpatnam Police have registered a case in Cr.No.66/2017 under Section 302 IPC. The Police have investigated the case by examining witnesses and filed charge-sheet against the accused alleging that he committed an offence punishable under Section 302 IPC.
3.On appearance of accused before IV Additional Chief Metropolitan
Magistrate, Vijayawada and on perusal of record, took the offence to cognizance
3 VII Addl.Dist., & Sessions Court, Sessions Case No.52/2017 Vijayawada. Dated 09.04.2018 --------------------------------------------------------------------------- under Section 302 IPC. After complying the formalities provided under Section 209 of Cr.P.C., committed the case to the Court of Sessions, Metropolitan
Sessions Division, Vijayawada, since the case is exclusively triable by Court of
Sessions.
4.The Metropolitan Sessions Judge, Vijayawada has made-over the case to this Court for disposal according to Law.
5.On appearance of accused before the Court my learned Predecessor-in-
Office, after hearing framed a charge under Section 302 IPC against the accused. The charge was read-over and explained to the accused, he pleaded not guilty and claimed for trial.
6.The Additional Public Prosecutor requested the Court to appoint
Dr.Shaik Mohammad Ishaque, Tutor of Nagarjuna University in Arabic
Language as Translator for translating the Arabic Language spoken by Pws.1 to 3 and accused into English or Telugu in the presence of the learned counsel for accused. This Court also heard the counsel for the accused. I have also perused the certificates of Master of Arts, Master of Philosophy and Doctor of
Philosophy in Arabic [Language and Literature] of Dr.Shaik Mohammad
Ishaque issued by the English and Foreign Languages University [A Central
University established by an Act of Parliament], Hyderabad, India. I have also perused the certificate issued by Director, International Students Cell, Acharya
Nagarjuna University, Nagarjuna Nagar, Guntur District as to his proficiency in
Arabic at their International Students Cell and taking classes in Arabic
Language. I am satisfied that he got proficiency in understanding Arabic
Language and translating the same either in Telugu or English. The counsel for accused also consented for appointing Dr.Shaik Mohammad Ishaque, Tutor of
Nagarjuna University to translate the questions put by the Additional Public
Prosecutor and defence counsel in Telugu and English to the witness in Arabic
Language and the answers given by the witness in Arabic Language was translated in Telugu and English language as verbatim.
7.On behalf of the prosecution, PWs.1 to 10 were examined, Exs.P1 to P16 and MOs.1 to 7 were marked.
a]The roommates of the deceased and who saw the deceased for the first time with injury on the dead-night and who heard from the accused as to committing of offence were examined as PWs.1 to 3.
4 VII Addl.Dist., & Sessions Court, Sessions Case No.52/2017 Vijayawada. Dated 09.04.2018 --------------------------------------------------------------------------- Ex.P1 was marked through PW1. Ex.P2 & P3, contradictory portions of the statements of PWs.2 & 3 were marked through PWs.2 & 3 respectively; b]The owner of the house bearing D.No.13-55, Varla Bazar,
Ferry Road, Ibrahimpatnam in which the accused, deceased and PWs.1 to 3 have resided, was examined as PW4 to prove letting the second floor to the accused, Amar, deceased and PWs.1 to 3, his presence immediately after the incident and finding the deceased with injury at that late hour and also to prove the topography of his house; c]The Village Revenue Officer of Ibrahimpatnam village and the Associate Professor of Nova College of Ibrahimpatnam were examined as PWs.5 and 8 to prove the observation of the scene of offence, inquest and arrest of the accused.
Ex.P4 to P9 and MOs.1 to 3 were marked through PW5; d]The Constable of Ibrahimpatnam who was directed to take the dead body to Government General Hospital, Vijayawada for postmortem and delivery of the dead body to Hasan
Eassa Mohammed [LW4] after postmortem and taking his blood stain shirt, banian and lower garment as PW6. MOs.4 to 7 were marked through him. Exs.P10 to P12 were marked through him; e]The Sub-Inspector of Police who received Ex.P1 from PW1 registered it into FIR was examined as PW9. Ex.P13 FIR was marked through him; f]The Inspector of Police who investigated the case was examined as PW10. Exs.P14 to P16 were marked through him.
The learned Additional Public Prosecutor had given up the evidence of
Hasan Eassa Mohammed [LW4] and Ullanghula Mallikarjuna Rao [LW9].
8.After closure of prosecution evidence, the accused was examined under
Section 313 of Cr.P.C., to explain the circumstances appearing against him in the evidence of prosecution witnesses. The accused who had gone through the 5 VII Addl.Dist., & Sessions Court, Sessions Case No.52/2017 Vijayawada. Dated 09.04.2018 --------------------------------------------------------------------------- statement under Section 313 Cr.P.C., himself denied the incriminating circumstances appearing against him in the evidence of prosecution witnesses by writing with his own handwriting.
9.Initially, the accused submitted that he has no written statement and defence but at the stage of arguments filed Crl.M.P.No.20/2018 to permit him to examine himself before the Court. On such permission, the accused himself was examined as DW1 to prove that he did not borrow any money from the deceased. Ex.D1 was marked through him.
10.Heard the learned Additional Public Prosecutor and learned counsel for accused.
11.Now the point for determination is :
Whether the prosecution had proved beyond reasonable doubt that the accused committed murder of Mohammed Elmgtaba
Abdel Gabar Hussain Osman [deceased] and if so, is liable to be punished for the offence under Section 302 IPC?
12.Point :
The case of prosecution is that the accused, deceased, PWs.1 to 3 who belong to Sudan Country are studying in Nova College at Ibrahimpatnam and residing in the second floor of the house of PW4 that the deceased lent
Rs.16,000/- to the accused that as the accused did not repay the debt and when the deceased demanded him to repay, the accused became wild and killed him by stabbing with knife. On the other hand, it is a case of denial by the accused. It is also the case of accused that he was following the deceased to
Andhra Hospital, Gollapudi where he was declared as dead that a false case was foisted against him.
13.In order to prove the Charge under Section 302 IPC, the prosecution has to prove that, a]death of some human being has taken place; b]such death was neither suicidal nor accidental but it was homicidal; c]the accused did the act with intention of causing death; d]an act with intention of causing such bodily injury as he is likely to cause death; or e]an act with knowledge that the act is likely to cause death 6 VII Addl.Dist., & Sessions Court, Sessions Case No.52/2017 Vijayawada. Dated 09.04.2018 --------------------------------------------------------------------------- in the ordinary course of nature.
14.Dr.B.Srinu Nayak [PW7], Assistant Professor, Government General
Hospital, Vijayawada conducted autopsy on the dead body of Mohammed
Elmgtaba Abdel Gabar Hussain Osman [deceased] on requisition of
Ibrahimpatnam Police. He deposed that during postmortem, he found the following antemortem injuries.
1]Abrasion on left side of the temporal area of 2 x 1 cms in size in reddish colour; 2]Multiple abrasions on the right side of the wrist and front of right knee joint with irregular margins reddish in colour; 3]A cut laceration of 2 x 1 cms, red in colour on the backside of left palm between middle and ring finger, a cut laceration of 2 x 1 cms present with red in colour;
and
4]A stab injury present on left side of chest 12 cms below the left aerola with clean cut and inverted with 2 cms length, 1 cm width and 10 cms depth piercing the chest wall and pericardium between 6 and 7 ribs at mid clavicular line entering into the anterior border of the heart with clotted blood of 100 ml.
PW7, the Doctor after considering Exs.P10 & P11 gave his final opinion under Ex.P12, that the deceased died due to stab injury on chest [injury No.4].
There is no cross-examination that injury No.4 is not a stab injury. The evidence of Pws.5 & 8 said to be present at the time of inquest coupled with
Ex.P7 establishes that they found injury on the left side of the chest of the deceased. They also opined that the death was due to the said stab injury.
There is no contra evidence. The defence of accused is that somebody might have stabbed the deceased and might have thrown knife into corridor. The evidence of PW7 coupled with Exs.P10 & P12, and the evidence of Pws.5 & 8 coupled with Ex.P7 proves the death of the deceased and the said death was neither suicidal nor accidental. Further, the prosecution has proved that the death of the deceased is not a natural death but a homicidal death.
15.Once the death of a person is proved as homicidal, the next question
before me is who did the said act. Ex.P1 is the first information to
Ibrahimpatnam Police. As seen from Ex.P1, it was received at 03.30 AM on 31.01.2017. The sum and substance of Ex.P1 is that the deceased lent
Rs.16,000/- to the accused for his college fees that on intervening night of 7 VII Addl.Dist., & Sessions Court, Sessions Case No.52/2017 Vijayawada. Dated 09.04.2018 --------------------------------------------------------------------------- 30/31.01.2017, the deceased demanded the accused to return his amount that there was an altercation between them in that regard that the accused stabbed the deceased with knife that the deceased came to the room with injury that when they were questioning as to how he received the said injury, in the meanwhile, the accused came there and gave a statement before them that he stabbed the deceased.
16.It is an admitted fact that PWs.1 to 3, deceased and accused belong to
Sudan Country. They are all students of Nova College, Ibrahimpatnam. They are all residing in the second floor of the house bearing D.No.13-55, Varla
Bazar, Ferry Road, Ibrahimpatnam. Admittedly, PW4 is the owner of the said house. It is an undisputed evidence that the second floor consists of two portions. One entry of the portion is facing towards East and the other entry of the portion is facing towards West. There is a lack of clarity as to whether the entire second floor is a single house or accused, Pws.1 to 3 and deceased have divided the said house into two portions for better enjoyment. Whatever it may be, the admitted fact is that the accused and one Amar have approached PW4 and taken the entire second floor house on rent that later PWs.1 to 4 and deceased joined in the said house. Amar and accused have been residing in the portion facing door towards East. PWs.1 to 3 and deceased are residing in the portion facing door towards West. Except Amar, all other persons belong to
Sudan Country. It is an undisputed fact that Amar was not present on the date of incident.
17.The house bearing D.No.13-55, Varla Bazar, Feery Road, Ibrahimpatnam consists of ground + two floors. PWs.1 to 3, accused and deceased are residing in the second floor. PW4 is residing with his family in one floor. There is no evidence as to who are residing in the other floor. It is not the evidence of anybody that there are some more students in the other floor.
18.The motive behind the incident is that the deceased demanded the accused to return his Rs.16,000/- which he lent to the accused. The accused denied it. He also examined himself as DW1 to prove that he did not borrow
Rs.16,000/- from the deceased for making payment of college fees or other expenses. The evidence of PW1 is that the accused borrowed money from deceased for the purpose of paying room rent, fees and to pay compensation for the accident done by him. The evidence of PW3 is also that he came to college about four months prior to the incident. Probably, in September, 2016 or
October, 2016. According to the accused and his passport [Ex.P5], he came to
India on 13.08.2016. There is no evidence before the Court when the deceased 8 VII Addl.Dist., & Sessions Court, Sessions Case No.52/2017 Vijayawada. Dated 09.04.2018 --------------------------------------------------------------------------- came to India. The evidence of PW2 is that the deceased lent Rs.16,000/- to the accused to meet the rent, college fees and the compensation to be paid on account of accident caused by him. In the cross-examination, he also stated that he came to India about four months prior to the incident and that he was not present on the date of lending money by the deceased to the accused. The evidence of PW3 is also that the accused borrowed Rs.16,000/- from the deceased since his motorbike involved in an accident. The evidence of PW4, house owner, is that he also heard that the accused borrowed Rs.16,000/- from the deceased to pay rent and college fees. As could be seen from the evidence, there is no direct evidence that the accused borrowed either
Rs.16,000/- or anything from the deceased prior to the incident. None of the witnesses have stated that when the accused involved in the motor accident and whether there was any Police case against him.
19.With this evidence, the evidence of DW1 is also to be assessed. The evidence of DW1 and PW4 is that the accused and Amar have approached PW4 to let second floor portion to them. The entire second floor was let out on a monthly rent of Rs.6,000/- and advance of Rs.24,000/-. The evidence of PW4 and DW1 is that the said advance was paid by the accused. PWs.1 to 3 and deceased have joined in one portion of the second floor subsequently.
Therefore, there is a possibility of sharing the advance and also rent. The evidence of DW1 is that he came to India on 13.08.2016 that he paid college fees on 26.08.2016 and joined in the house of PW4 on 03.10.2016. It is argued that the accused paid college fees on 26.08.2016 that by the time PWs.1 to 3 were not even in India, therefore, there was no chance for the accused to borrow any money from the deceased and that relied on Ex.D1, college fee receipt. The evidence of DW1 is that he joined in B.Tech., in Nova College,
Ibrahimpatnam, Krishna District. Ex.D1 was not filed during the examination of the accused under Section 313 Cr.P.C. There is no mention or reference of
Ex.D1 in his examination under Section 313 Cr.P.C. After hearing the learned
Additional Public Prosecutor and after posting the case for hearing the defence
counsel, an application was filed to permit the accused to examine himself as witness and to receive the fee receipt. The Court permitted to receive fee receipt
dated 26.08.2016. As could be seen from Ex.D1, description of the fee receipt
is as follows :
“Nova Ibm – 2015-16. Receipt Voucher No.3980
Dated 26-Aug-2016 towards the account of
AllaeldeenIbrahimHamedMahmoud (B.Pharmcy) 16-17” 9 VII Addl.Dist., & Sessions Court, Sessions Case No.52/2017 Vijayawada. Dated 09.04.2018 ---------------------------------------------------------------------------
The receipt also shows that cash of Rs.60,000/- was received towards new admission and tuition. The said receipt was issued by Principal, Nova
College of Pharmaceutical Education & Research (DR), Jupudi, Krishna
District. When accused was a student of B.Tech., how Ex.D1 refers that he was student of B.Pharmacy, more particularly, the heading of Ex.D1 shows the year as ‘2015-16’. The accused did not examine the college authority or the person connected to Ex.D1 to prove that Ex.D1 is relating to accused and it is the tuition fee receipt for the year 2016-17 and also to clarify why the heading of the receipt is shown for the year 2015-16. The perusal of Ex.D1 shows that it is not original. The upper portion of Ex.D1 and left side portion of it shows that it is a ‘photocopy’. The petition in Crl.M.P.No.20/2018 filed to receive Ex.D1 shows that the fee payment receipt could not be traced in his records kept with his friends and later it was found. It reveals that the accused must have been in possession of the original of Ex.D1. I do not understand why the accused did not file the original into Court. In the said circumstances, the Court cannot solely rely on Ex.D1 to come to conclusion that there was no occasion for the deceased to lend money to the accused.
20.Now, from the evidence there was enmity between the accused and deceased for sometime prior to the incident with respect to the hand-loan. But there was no enmity between the accused on one-hand and PWs.1 to 3 on the other. They all belong to one country and the terms between them were cordial.
In the said circumstances, the evidence of PWs.1 to 3 cannot be discarded merely on the ground that there was no proof that the deceased lent money to the accused. Normally, in a student life, no student will demand either a promissory note or a receipt or a document evidencing lending of money.
Simply, they borrow money and they will repay it subsequently. The Court can also take judicial notice of certain things, more particularly, the behavior of the students. Further, the accused and deceased are Foreigners to India and belong to one country. Therefore, there is a possibility of taking money by each other depending on their necessity. Anyhow, the Court cannot solely rely on motive to come to a conclusion that the accused committed murder of the deceased. No doubt, motive is one fact to be appreciated by the Court while appreciating the entire evidence on record. Even if, the prosecution failed to establish the motive that will not be fatal or need not be discarded the entire version of prosecution. With this above discussion, the Court also has to see the evidence placed by the prosecution as to the incident on the said date.
10 VII Addl.Dist., & Sessions Court, Sessions Case No.52/2017 Vijayawada. Dated 09.04.2018 ---------------------------------------------------------------------------
21.The evidence of PWs.1 to 3 is that after taking their dinner at about 08.00 PM or so, they came to the room and were engaged in their own activity namely, reading books, chitchatting with family members or so, that at about 12 midnight, the deceased went outside without informing to anybody where he was going. It is the evidence of PWs.1 to 3 that within 20 or 30 minutes the deceased returned keeping his hand on his stomach feeling breathlessness.
The evidence of PW1 is that he questioned the deceased what had happened, that as the deceased was feeling breathlessness, could not answer what was happened at that time. It is the evidence of PW2 that when PW1 questioned the deceased, he murmured something but they could not hear. The evidence of
PW3 is that just on seeing him he left the place to secure a vehicle to take the deceased to hospital for treatment. No doubt, PW3 has also stated that PW1 questioned him what had happened and that the deceased answered that the accused stabbed him. The evidence of PW4 is that after hearing some galata in the second floor he came there and found the deceased with injury and also the presence of PWs.1 to 3. The evidence of DW1 is that he alone was in his portion at the time of incident that he observed PW4 at the scene of offence from his bedroom. Therefore, the cumulative evidence of PWs.1 to 4 and DW1 establishes the presence of PWs.1 to 4 and accused in the second floor. There is no evidence that any other person was present at that time or possibility of presence of any other third person. The evidence of PW1 is that when he questioned the deceased what had happened, the accused came there and stated to him that the deceased came to his room and demanded to return his money immediately that he refused and in the said circumstances, he stabbed him. It is not a statement given to any Police Officer but it is a statement given to a person, more particularly, a person belong to his Nation, immediately after the incident. PW2 did not state this aspect. His evidence is that he was told by
PW1 about questioning of the accused and narration of the altercation between them and leading it to stabbing of deceased. PW3 also did not state about the statement given by accused. It is his evidence that the deceased himself told them that the accused stabbed him. No doubt, it is not the case of anybody including Ex.P1 that the deceased told them that the accused stabbed him. No doubt, there will be some exaggeration in the evidence but the Court has to consider the overall evidence of all witnesses. Further, in the cross- examination by Additional Public Prosecutor, PW3 stated that the accused told them that the deceased knocked the door and demanded him to pay
Rs.16,000/- and in the altercation he stabbed him as stated in Ex.P3.
Whatever it may be the evidence with a regard to the statement given by the accused at that time, the evidence on record shows that the incident was happened within 20 to 30 minutes after the deceased left their room. They are 11 VII Addl.Dist., & Sessions Court, Sessions Case No.52/2017 Vijayawada. Dated 09.04.2018 --------------------------------------------------------------------------- residing in the second floor. Chances are very less to climb two floors with such injury. The evidence of PW4 is that he heard some galata in the second floor and came to the second floor. Therefore, the incident must have been in the second floor only. The accused suggested that somebody stabbed the deceased and thrown knife in front of their portion. There is no suggestion or evidence that the deceased has got any rivalry with any other person either in the college or in the vicinity they are living. Therefore, the chances of stabbing by any person entering into the second floor are very bleak and less.
22.At this stage, the learned counsel for accused argued that if really, the accused had stabbed the deceased he would not venture to come to Nimra hospital and also would not have ventured to assist the deceased while shifting him to Andhra Hospital at Gollapudi, therefore, it indicates foisting a false case against him. I do not find any reason in the said contention. PWs.1 to 3 have admitted that the accused came to Nimra hospital. They also admitted that the accused assisted while they were shifting the deceased into auto from Nimra hospital to Andhra Hospital, Gollapudi. There is no evidence that the accused has any criminal background. He is just a student. The circumstances are that the deceased went to the room of accused and demanded money that while so, there is a possibility of altercation or at-least exchange of words between them.
There is also possibility of using knife to threat the other person. Whatever may be the circumstances, the injury was caused to the deceased. The accused may not visualize or felt that the injury he caused would be so serious and it would result his death. There was no enmity between them and the differences if any is only on account of monetary issue. In the said circumstances, he would think that taking him to hospital and timely treatment would regain his health.
Naturally, there is a possibility of accompanying the deceased to the hospital.
Therefore, the mere fact that the accused came to the hospital cannot be taken that he did not commit any offence. Further, this alone cannot be a deciding factor that the accused has not indulged in any act as alleged by the prosecution. Further, there is no evidence that the accused was available after the deceased was declared as dead. It is clearly stated in Ex.P1 that the accused stabbed the deceased. The incident was at 12.30 AM or so [midnight] and the report was given to Police at about 03.30 AM. In between the incident and report, the deceased was taken to two hospitals. Therefore, there is no possibility of bringing concocted version within the short-time after the incident. Further, when a third person caused the death of the deceased why should they implicate the accused in the incident. There is no enmity between the accused and PWs.1 to 3. If at all there should have been a dispute between the accused and deceased and not between accused and Pws.1 to 3. Therefore, 12 VII Addl.Dist., & Sessions Court, Sessions Case No.52/2017 Vijayawada. Dated 09.04.2018 --------------------------------------------------------------------------- I do not find any reason to foist a false case against the accused. Further, I do not find any reason to discard the evidence of PW1, in the absence of specific evidence that PWs.1 to 3 had grievance against the accused or ill-feelings or animosity between them.
23.At this stage, the learned Additional Public Prosecutor relied on decisions reported in ‘Mundrika Mahto and others vs. State of Bihar’ 1 , ‘State of
U.P., vs. M.K.Antony’ 2 , ‘Dhedya Bajya Valvi vs State of Maharashtra’ 3
and ‘Arjuna Pradhan vs. The State’ 4 , for the proposition that when the evidence of witnesses is trustworthy and reliable interestedness cannot be a ground to refuse their evidence and the extra judicial confession comes from the mouth of such witness has to be accepted. In ‘State of U.P. vs.
M.K.Antony’s case,Their Lordships held that extra judicial confession is a weak piece of evidence, but if the evidence comes from the mouth of the witness appears to be unbiased, not even remotely inimical to the accused the words spoken to by the witness are clear unambiguous and unmistakably convey that accused is the perpetrator of the crime the extra judicial confession can be accepted and can be the basis of a conviction [Para 15]. In Arjun Pradhan’s case, Their Lordships held that “it has to be seen whether the person before whom such a confession was made is known to the person making confession, that is, the confession is not made before a stranger. Normally a person would not make an implicatory statement before a stranger. If the person before whom the confession is made is a close relative of the person making confession, or has possibility of being in his confidence, the same can be a piece of evidence to be utilized against the accused”. Inthe present case, except the fact that the deceased is the roommate of PW1 there is no other interest with him. Further, there is no evidence that there is any enmity between the accused and PW1.
There is no need for PW1 to implicate the accused. The evidence of PW1 is very clear and categorical about the statement made by accused at that time.
Therefore, this Court can safely rely on the evidence of PW1 with respect to the confession made by the accused.
24.The evidence of PW1 is that after receiving copy of Ex.P13, he came to the scene of offence building, protected it, and secured the presence of PW5 [Village Revenue Officer of Ibrahimpatnam] and PW8 [Assistant Professor of
Nova College] and observed the scene of offence. It is the evidence of PWs.5, 8 & 10 that they found blood stains in the room of accused and the scene of offence was got photographed under Exs.P6 ( j ) to P6 (m). The evidence of 1 AIR 2002 SC 2042 2 AIR 1985 SC 48 3 1996 Crl L.J. 174 4 1992 Crl L.J 3614 13 VII Addl.Dist., & Sessions Court, Sessions Case No.52/2017 Vijayawada. Dated 09.04.2018 --------------------------------------------------------------------------- PWs.8 & 10 is that they did not find either blood stains or knife in the pathway or near the door of the Western portion or at any place in the pathway. The learned counsel for accused argued that if really the incident was happened in the room of accused there should have been blood stains not only in the room of accused but also in the corridor till the portion of deceased where he was with PWs.1 to 3. But the evidence on record shows that there were blood stains in the room of the accused and there was no blood stains in the corridor. The evidence of PWs.1 to 3 is that the incident was happened in the room of accused that the deceased came to his room putting his hands tight around stomach. Exs.P6 (l) is the entire building. Ex.P6 ( j ) is the corridor. The accused is residing on the Eastern side. There is a door on the North where
PWs.1 to 3 and deceased are residing. There is a possibility of spilling blood if anybody stabs with knife. When deceased putting his hands tight to the stomach portion, there is a possibility of spilling blood at the corridor or not, but there is a possibility of spilling blood at the place where he was stabbed and where he fell down. After the incident, there is a possibility of moving several persons in the corridor and there is also possibility of erasure of traces of blood found here and there. The categorical evidence is that the deceased had injury by the time he came in front of their room. The evidence of PW4 is also every clear about it. The accused is also admitting the presence of PW4.
The evidence of Pws.5, 8 & 10 is that they did not find blood in the corridor that does not mean that no incident was happened at that time. Anyhow, this is also one circumstance to be in mind of the Court besides the other evidence.
25.At the stage, the learned counsel for accused argued that if really, there was blood in the room of accused, the investigation agency should have taken it and should have sent it to the Forensic Science Laboratory to prove that it is the blood of the deceased or human blood. As could be seen from the evidence, the investigation agency did not make such attempt. At the stage, the learned counsel for accused relied on a decision reported in ‘Smt.Omwati etc., vs.
Mahendra Singh and others’ 5for the proposition that when Police failed to explain why they have not taken a sample of blood stains and test the same, the Court must come to a conclusion that the prosecution has not proved the case beyond reasonable doubt. The facts in the said case are different from the facts of the present case. In the said case, there is a discrepancy as to the injuries and failure on the part of prosecution to establish motive. Whereas in the present case, there is evidence with respect to motive, demanding the accused to return his money. No doubt, there is a clear lach on the part of investigating agency for not sending the blood stains found in the room of the 5 1997 (9) Supreme 385 14 VII Addl.Dist., & Sessions Court, Sessions Case No.52/2017 Vijayawada. Dated 09.04.2018 --------------------------------------------------------------------------- accused but that lach in the investigation cannot be taken as a ground to disbelieve the entire case of prosecution.
26.At this stage, the learned counsel for accused argued at length against the manner of investigation and the manner of seizure of MOs.1 to 3, more particularly MO.3. The evidence of PWs,5, 8 & 10 is that PW10 got information about the accused that he secured their presence and found him near petrol bunk wearing blood stained ‘T’ shirt and pant that he seized them and that the accused lead them to a place where they found MO.3 knife [Exs.P8 & P9].
27.The evidence of PWs.1 to 3 is that they found MO.3 knife in the corridor immediately after the incident. At that time, everybody would be hurry in shifting the deceased to hospital for treatment. Nobody would mind about the knife. The deceased was declared as dead at Andhra Hospital, Gollapudi. The evidence of PW1 is that he returned to room from hospital. There is also possibility for the accused to return to the room and to take away the knife from the place. Whatever may be circumstances, there is a clear evidence to show that knife was found in the corridor, who removed it is not a criteria.
What was the stage immediately after the incident is to be considered by the
Court. Whether the Court believes the version of investigation agency as to seizure of MO.3 knife at a particular place or not, but the evidence on record shows that PWs.1 to 3 found MO.3 knife at that place.
28.At this juncture, the learned Additional Public Prosecutor argued that the minor discrepancies in the evidence do not effect the prosecution case and relied on a decision reported in ‘Madhu alias Madhuranatha and another vs. State of Karnataka’ 6 . The learned Additional Public Prosecutor also argued that when there is no direct evidence to witness the incident the Court has to rely on the circumstantial evidence that the accused was found in his room before causing injury to him, therefore, it is for him to explain the circumstances. For the proposition, he also relied on a decision reported in
‘Bodh Raj alias Bodha and others vs. State of Jammu and Kashmir’ 7 .
The learned Additional Public Prosecutor also argued that the deceased was found in the company of accused before he was stabbed, therefore, it is for the accused to explain the same. The learned counsel for accused argued that there is no evidence to show that the accused was not seen lastly with the deceased therefore, there is no need for accused to explain it that for the said proposition she relied on a decision reported in ‘Durga Devi vs. Vinod Kumar 6 AIR 2014 SC 394 7 2002 Crl L.J 4664 15 VII Addl.Dist., & Sessions Court, Sessions Case No.52/2017 Vijayawada. Dated 09.04.2018 --------------------------------------------------------------------------- Sharma’ 8and ‘Anant Bhujangrao Kulkarni vs. State of Maharashtra’ 9 .
The evidence on record does not show that the deceased was seen with accused
before he was stabbed. Therefore, strictly last scene theory is not applicable to
the facts. Coming to the discrepancy in the evidence is concerned, no doubt there are variations in the evidence of Pws.1 to 3 with respect to the confession statement and certain other aspects. With respect to confession the clear evidence of Pws.1 and 2 is that the accused came to the scene of offence immediately after the incident. The accused did not make any attempt to shift the deceased to hospital along with Pws.1 to 3. It is not the case of accused that he also made an attempt to shift the deceased to Nimra Hospital. No doubt, he came to Nimra Hospital. The evidence is categorical that the accused made the statement to PW1. Therefore, the minor variations in the evidence of
Pws.1 and 2 are not material.
29.Summarizing the entire evidence on record, it clinchingly establishes the fact by linking chain that the deceased went to the room of the accused to demand him for return of his money and that the accused stabbed him. The evidence on record shows that the accused may not have intention to kill him.
But the evidence on record shows that the accused stabbed the deceased in the chest. Ex.P10 postmortem report shows that the depth of the injury is about 10 cms piercing the chest wall and pericardium between six and seven ribs at midcavicular line entering into the anterior border of the heart. It shows the pressure that was used by the accused while stabbing the deceased.
Therefore, the accused had knowledge that causing such injury to deceased would likely to cause his death in the normal course. Therefore, from the facts and circumstances, I hold that the prosecution established that the accused had committed the offence of murder punishable under section 302 IPC beyond reasonable doubt. I hold this point accordingly in favour of prosecution.
30.In the result, ACCUSED IS FOUND GUILTY for the offence punishable under section 302 IPC and he is convicted under section 235 (2) Cr.P.C. for the offence punishable under section 302 IPC.
This Judgment in para Nos.01 to 27 are dictated to the Stenographer Gr.II, transcribed by him, and remaining para Nos.28 to 30 are typed directly on computer to my dictation, corrected on computer and pronounced by me in this open court on this 9th day of April, 2018.
Sd/-T.Venugopal Rao
XII Addl. District & Sessions Judge cum VI Additional Metropolitan Sessions Judge, FAC : VII Additional District Judge cum IV Additional Metropolitan Sessions Judge, Vijayawada 8 2005 Supreme (Delhi) 905 9 AIR 1993 SC 110 16 VII Addl.Dist., & Sessions Court, Sessions Case No.52/2017 Vijayawada. Dated 09.04.2018 ---------------------------------------------------------------------------
QUANTUM OF SENTENCE dated 09.04.2018 :
31.The accused is produced from Central Prison, Rajamahendravaram. The accused is questioned regarding the quantum of sentence to be imposed on him after explaining the punishment provided under section 302 IPC. The accused did not state anything as to the quantum of sentence to be imposed on him.
Heard the learned counsel for accused. The learned counsel submitted that the accused is a Student and having future, therefore, a lenient view is to be taken in the punishment by applying relevant provisions under Probation of
Offenders Act. The learned Additional Public Prosecutor is also present.
No doubt, the accused had no intention at the beginning to kill the deceased. A simple issue made him to stab the deceased. Though he is a student and the manner in which he reacted for the simple incident is to be bear-in-mind while awarding punishment. Further, the Court has to see the force he applied at the time of stabbing. Considering the circumstances, the manner of incident, I am satisfied that this is not a rarest of rare cases warranting sentence of death. Further, it is not a fit case to extend the provisions of Section 360 Cr.P.C., or the provisions of Probation of Offenders
Act.
The accused is convicted under section 235 (2) Cr.P.C., and sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs.1,000/- (Rupees One Thousand Only) in default of payment of such fine, shall undergo simple imprisonment for two-months. Mos.1 to 7 shall be destroyed after appeal time is over. The accused has been in Judicial custody from 02.02.2017 till today and he is entitled to set-off the period of detention undergone as
Under Trial Prisoner subject to provision of Section 433-A read with 432 or 433
Cr.P.C. The accused was also informed about his right to pray appeal.
Para No.31 is directly typed on my dictation by the Stenographer Gr.II on Computer, corrected and pronounced by me in this open court on this the 9th day of April, 2018.
Sd/-T.Venugopal Rao
XII Addl. District & Sessions Judge cum VI Additional Metropolitan Sessions Judge, FAC : VII Additional District Judge cum IV Additional Metropolitan Sessions Judge, Vijayawada 17 VII Addl.Dist., & Sessions Court, Sessions Case No.52/2017 Vijayawada. Dated 09.04.2018 ---------------------------------------------------------------------------
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
Prosecution: PW1:Bodredin Abdulla Mohammad PW2:Mohammad Saifuddin PW3:Osama Basheer PW4:Eslavath Prasad Nayak PW5:Nacherla Vijaykumar PW6:R.V.N.Anil Kumar PW7:Dr.P.Srinu Nayak PW8:Ch.Nanda Kishore PW9:T.Srinivas PW10:D.Chavan
Defence:
DW1:Allaeldeen Ibrahim Hamed Mahmoud
DOCUMENTS MARKED FOR
Prosecution:
Ex.P131.03.2Complaint given by PW1. 017 Ex.P2---Portion of statement under section 161 Cr.P.C., of PW2 Ex.P3---Portion of statement under section 161 Cr.P.C., of PW3 Ex.P4---Scene of observation report Ex.P5---Passport of accused Ex.P6 (a) to ---Photographs [thirteen-in-number]
(m) Ex.P7---Inquest report Ex.P8 ---Relevant portion of confession of accused Ex.P9---Mediator report on 1.2.2017 at 18 hours Ex.P10---Postmortem report Ex.P11---RFSL report Ex.P12---Final opinion Ex.P13---FIR in Cr.No.66/2017 Ex.P14---Rough sketch Ex.P15---Rough sketch Ex.P16---Letter of advice
DEFENCE:
Ex.D1---Receipt voucher
Material Objects :
MO.1‘T’ shirt MO.2Pant MO.3Knife Mos.4, T-Shirt, Cut banian, Lower and Underwear 5, 6 & 7
Sd/-T.Venugopal Rao
XII Addl. District & Sessions Judge cum VI Additional Metropolitan Sessions Judge, FAC : VII Additional District Judge cum IV Additional Metropolitan Sessions Judge, Vijayawada 18 VII Addl.Dist., & Sessions Court, Sessions Case No.52/2017 Vijayawada. Dated 09.04.2018 ---------------------------------------------------------------------------
Copy submitted to : The Hon'ble Registrar (Judicial) High Court of A.P., Hyderabad.
Copies to
1. The IV Additional Chief Metropolitan Magistrate, Vijayawada.
2. The Additional Public Prosecutor, VII Additional District Court, Vijayawada
3. The Station House Officer, Ibrahimpatnam, Police Station.
4. The Accused.
//True Copy//
Superintendent, VII Additional District Judge’s Court cum IV Additional Metropolitan
Sessions Judge’s Court, Vijayawada