Pathlavath Kishan v. State Of Ap., Rep.Byits

Note : The AppellanUAccused was directed to be released on !qil-!V-!he.9'{"t gf trre Hign court dated 02_01-2012 in Crl.A.M.p.No.2236 0t 2011 in crl.A.No. 1491 of 2011 .

IN THE HIGH COURT FOR THE STATE OF TELANGANA

AT HYDERABAD THURSDAY,THE FOURTEENTH DAY OF JULY TWO THOUSAND AND TWENTY TWO PRESENT THE HONOURABLE SMT JUSTICE M.G.PRIYADARSINI CRIMINAL APPEAL NO: 1491 OF 2011 Appeal under Section 374 (2) Cr.P.C aggrieved by the Judgment dated' 15t11t2O11 Passed in SC.No.339 of 2010 on the file of the Court of the Metropolitan Sessions Judge, at Hyderabad .

Between:

Pathlavath Kishan, S/o P.Tukaram, aged about 20 years. Occ: Painter, R/o 10-3162t661FF, Near failway Qtrs, Ambedkar l*gar, Secunderabad. ...APPELLANT/ACCUSED AND State of AP., Rep.byits, Public Prosecutor, High court of AP Hyderabad' ...RESPONDENT Counsel for the Appellant :M/s. NASEEB AFSHAN Counsel forthe Respondent : PUBLIC PROSECUTOR (TG) The Court made the following: JUDGMENT

THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI CRL.A.NO.r491 0F 2011

JUDGMENT

The court of Metropolitan Sessions Judge, Hyderabad vide judgment in S.C.No.3390 of 2010 dated 15.11.2011 found the accused - Pathlavath Kishan s/o P.Tukaram guilty for the offence under Sectio n 324 IPC and sentenced him to suffer simple imprisonment for six moths and to pay a fine of Rs'5O0/-, and in default in payment of fine, to suffer imprisonment for a period of one month. Assailing the same, the accused filed the present appeal.

2. The case of the prosecution is that P.W. 1, father of the t'prosecutrix (P.W.3), gave a written complaint on 1O.O4.2O10 at OO-1O I ..:, '

, hours to Sub-lnspector of Police, P.S. Thukaram Gate - P.W.s stating ::

that his elder daughter by name Kum. Mariamma (P.W.3), aged about 18 years, was working as maidservant, and as usually she was proceeding to Ambedkar Nagar, to attend her regular work. In the meanwhile, the accused by name Kishan, aged about 20 year, resident of Ambedkar Nagar, was following her for the last one week and teasing her, asking to love and marry him. That, his daughter, got humiliated, and informed to her elder brother David - P.W.2, on the i Saturday evening. On that, his son (P.W.2) went to the said Kishan at r Ambedkar Nagar, and asked him as to why he was teasing his sister. On that, the said Kishan took out a knife from his pocket and stabbed

in the stomach of his son P.W.3, three times, and on his cries, the locality people rushed there. That on getting information, he (P.W. l) rushed to the spot and shifted the injured (P.W.2) to Gandhi Hospital, Secunderabad in an auto with the help of local people, and admitted him for treatment. With thise aliegations, P.W. I lodged Ex.P-1 report.

3. During the course of investigation, the statements of L.Ws. I to 3 (P.Ws. I to 3) were recorded and the accused was arrested on 11.4.2O1O and remanded to judicial custody.

4. After completion of investigation, P.W.S, who is the investigating oflicer, filed charge sheet against the accused for the offence punishable under Section 307 IPC.

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5. The court has taken cognizance of the offence under Section 307 IPC, and supplied copies to the accused. After hearing the accused and the prosecution, court framed the charge under Section 307 IPC, and the same was read over to the accused in the vernacular language, for which he pleaded not guilty, and claimed to be tried.

6. To prove the case of the prosecution P.Ws.l to 6 were examined and Exs.P-1 to P-4 were marked.

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7. The accused was examined under Section 313 Cr.P.C. with regard to the incriminating material appearing in the evidence of the prosecution witnesses, and he denied the same, and also reported no evidence.

8. The trial court found the accused guilty for the offence under Section 324 IPC, and accordingly convicted and sentenced him. Assailing the same, the present appeal is filed by the accused.

9. Learned counsel appearing for the appellant submits that there is absolutely no evidence to lind the accused guilty and there are discrepancies, which disprove the case of the prosecution, but the trial court without appreciating the same, found the accused guilty. Learned counsel has taken this court through the entire evidence on record, and submitted that the judgment of the trial court may be set aside and the accused may be acquitted ofthe charge.

10. On the other hand, learned public prosecutor supporting e impugned judgment of the trial court sought to dismiss the th appeal.

1 1. In view of the facts and circumstalces of the case, and the rival contentions of both the counsel, the issue that arises for consideration is whether the impugned conviction and sentence can be sustained?

12. To consider the above issue, it is necessary to examine the evidence available on record.

13. P.W. 1 is the father of the prosecutrix (P.W.3) as well as P.W.2, the injured. He deposed that he is the resident of Ambedkarnagar, Rail Nilayam, Secunderabad, and that he is a pett5z vendor; L.W.2 (P.W.2) is his son, and that he knew the accused, who resides in their batsi (locality); that his daughter informed him that ;

Il the accused used to tease her and propose for marriage every day whenever she go for work; that on 1O.04.2010 at about 7.00 p.m., his son David (P.W.2), went to the house of the accused and asked him about the teasing, then accused stabbed his son; that when he came to know that the accused stabbed his son, immediately he rushed to the spot, and found his son in a pool of blood; that he along with basthi persons shifted his son to Gandhi Hospital; that he found three stab injuries on the stomach of P.W.2; on the same night in the early hours, he went to police station and gave a complaint; and that the i police examined him and recorded his statement, which is Ex.p- 1 tj complaint. He was cross-examined, and nothing contrary to his chief examination could be elicited by the defence counsel. i

14. P.W.2 is the injured and the brother of P.W.3. He deposed that he is the resident of Ambedkarnagar, Rail Nilayam, Secunderabad; that P.W. 1 is his father, L.W.3(P.W.3) is his sister; that

) he knew the accused; that he resides in their locality; that the . accused was insisting his sister to marry him, and teasing her; that a , she told him the same; on that he proceeded to the house of accused :

l l , and asked him why he was teasing his sister; that accused went i inside the house and brought one knife, and stabbed on the left side . abdomen and back; that the injury was bleeding; that the persons present there witnessed the incident, and he was taken to Gandhi Hospital. He was cross-examined, and there is no contradiction with his chief.

15. P.W.3 is the prosecutrix. She deposed that P.Ws.1 and 2 are her father and brother respectively; that he knew the accused; that he resides in their locality; that the accused used to ask her to love him, and marry him, and used to tease her; that she informed to her brother P.W.2, about the said incident at 7.OO p.m. on 10-O4-201O; that her brother went to the house of the accused and asked about the accused teasing her; and that there was clash between them, and the accused stabbed her brother; that she came to know about that through her relatives; that she went there and found 'a her brother with bleeding injuries; that he was shifted to Gandhi t t Hospital and that the police examined and recorded her statement. ,i She was cross-examined, and she denied the suggestion that accused :1 t was not teasing her.

16. P.W.4 is the Casualty Medical Officer, Gandhi Hospital, Secunderabad at the relevant time. He deposed that on 10.04.2010 at

8. 15 p.m., patient by name David (P.W.2) aged about 21 years came to the Casualty, Gandhi Hospital, with alleged history of stabbing by knife at 7.45 p.m., by known person by name Kishan in East Marredpally. He has examined the injured and found the following injuries:

1. Lacerated injury of size 2 x 1 x O.5 cm. on the right side of chest;

2. Lacerated injury over the right scapular region of size 1 x O.5 x 0.5 cm.

3. Another lacerated injury over the left scapular region of size 1 x O.5 x O.5 cm.

He further deposed that the patient was referred to C.T. Surgery Department; that Ex.P-2 is the 'accident register extract' issued by :

him; that the injury can be either simple or grievous and that the l i same can be caused by a small knife; and that the injury was fresh, aged below one hour.

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17. P.W.s is the Sub Inspect of Police working at the relevant time at P.S. Tukram. He deposed that on LO.O4.2OLO P.W.1 lodged a l complaint before him and he registered a case in Cr.No.40/201O ulsec. 324 IPC and issued FIR; that Ex.P-3 is the FIR issued by him; '

that immediately he shifted P.W.2 - injured, to Gandhi Hospital for treatment; that on the same day; he instructed one Dhan Raju, Potice i i i 'i Constable to record the statement of the injured; that on 11.4.2010 he l

recorded the statements of P.Ws. 1 to 3; that on 1 1 .4.2O 1O, the accused was arrested and produced before the Hon'ble Court for judicial remand, and after collecting the medical certificates, he filed charge sheet. Ex.P-4 is the medical certificate issued by Superintendent, Gandhi Hospital, Secunderabad, in which it is mentioned that the injury is grievous.

18. [n the cross-examination he deposed that knife was not seized from the scene of offence.

19. P.W.6 is the Assistant Profession in Cardiac Surgery, Gandhi Hospital. He deposed that on 10.04.2010, P.W.2 was admitted in Traumatologr ward in Gandhi Hospital, and treated as inpatient from 10.04.2010 to l4.4.2OlO; that P.W.2 sustained a lacerated wound on his right side of chest, right scapular region and i left scapular region; that the above said lacerated wound was a :

I penetrating injury, which caused damage to his lung on the right side, . leading to right lower zone consolidation with plural effusion; that the above said injury sustained by P.W.2 is grievous in nature; that he brought the case sheet pertaining to P.W.2, and he is filing it into court on that day (i.e., date of giving deposition); that Ex.P-4 is the case sheet consists of 16 pages; covered with two papers; that he endorsed on Ex.P-4, as the injury is grievous in nature; and at page No. 1, he signed on Ex.P-4.

20. In the cross-examination he admitted that the case sheet ).

was not given to Inspector of Police or Investigating Officer

21. The gravamen of the charge as per the contents in Ex.P-l i report is that the accused used to tease the prosecutrix when she goes to work, and used to aske her to love and marry him, and that when she informed the same to her brother P.W.2, he is stated to have gone to the house of the accused, and that when he questioned the accused, the accused got wild, took knife from his pocket, and l i stabbed P.W.2 on his stomach, causing bleeding injuries and that ! i immediately, the accused was shifted to Gandhi Hospital for r Ili { treatment, where he was initially examined by P.W.a, the Casualty : Medical Officer, and issued Ex.P-2 extract of accident register, and ' t later the injured was shifted to Traumatolog, Ward, where P.W.6 treated him as inpatient from 10.4.2010 to I4.4.2O10 and issued i Ex.P-4 case sheet.

22. As per the complaint the case of the prosecution is that when P.W.2 went to the house of the accused to question him as to .:

why he is teasing his sister, on that, the accused took knife from his ;I !

l i ! .,i pocket and stabbed P.W.2 on his stomach, causing bleeding injuries. But P.W.2, in his examination-in-chief deposed that when he went to !

l the house of the accused, the accused went into the house and brought one knife and stabbed him on the left side abdomen and back, causing bleeding injuries. From this statement, it is not clear

whether the accused took out the knife from his pocket or went inside . the house and brought the weapon. There is discrepancy in this ,regard.

23. It is pertinent to note that none of the witnesses have stated that the accused has an intention to kill P.W.2, and even as per their evidence, P.W.2 himself went to the house of the accused, and that accused never invited him with an intention to kill. Even assuming for a moment that the accused really stabbed P.W.2, . certainly P.W.2 would have sustained grievous injuries, and further : his clothes would have drenched with blood. But surprisingly no :

I blood stained clothes, and blood stained earth, and control earth, ii were seized. Further the crime weapon was not seized. P.W.5, the Investigating Officer, in his cross-examination has categorically { admitted that knife was not seized from the scene of offence. l

24. Further as per the evidence of P.W. 1, when he came to know about the incident, he rushed to the spot and found his son in a pool of blood and that he along with basthi persons shifted his son to . Gandhi Hospital and that on the same night in the early hours, he i went to the Police Station and gave a complaint. As per P.W.S who is I the Investigating Officer, on 10.04.2010, P.W. I lodged a complaint before him and he registered the same as a case in Cr.No.4O of 201O under Section 324 lPC, and issued FIR, marked as Ex.P-3 and that he immediately shifted P.W.2 to Gandhi Hospital for treatment.

Here there is discrepancy with regard to shifting of the injured to the hospital, i.e., whether it was by P.W. 1 and basti people, or by P.W.S, the Investigating Officer. However, the fact remains that P.W.2 was admitted in Gandhi Hospital and initially he was treated by P.W.4 in the Casualty Ward, and later he was admitted as in-patient and treated by P.W.6.

25. P.W.1 deposed that when he went near the scene of offence, his son was in a pool of blood, but as noted in the preceding paragraph, no blood stained clothes were seized, and no control earth and the blood stained earth were also seized, and no rough sketch of the scene of offence is prepared, to fix the place of incident.

26. As per the evidence of P.W.2, the injured, there are persons who have witnessed the incident, but no independent witness was , examined, except P.Ws. 1 and 3, who are not the eye witnesses. !

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27 . P.W.4 is the Casualty Medical Oflicer, Gandhi Hospital, Secunderabad and deposited about the lacerated injuries on P.W.2 and he issued Ex.P-2, which is the extract of the accident register. But curiously before the court he deposes that the injury can be either simple or grievous and the same can be caused by a smali knife. As already noted, the crime weapon was not seized by the prosecution. l

ll 2a. P.W.6 is the Assistant Professor' who treated the injured fromlo.04.2ol0inTraumatolorywardduringtheperiodfrom 10.4.2010 to l4-4.2OlO and he produced Ex'P-4 case sheet before the :

i i court and in the cross-examination, he admitted that he has not given the said case sheet to Inspector of Police or Investigating Officer' Here ittiitI\i .:

it is also important to note that why P.W.6 has suddenly appeared , b.fo.. the court and produced Ex.P-4 - case sheet, without giving the same to the Investigating Officer, and there is no proper explanation in this regard.

29. Thus in the above evidence, there are many discrepancies' and hence it cannot be said that prosecution has proved the guilty of the accused beyond all reasonable doubt' In the decision reported in i t f,.

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,, i.{'t PtIBLIcPRosEcuToRa.N.NARAYA,IVqI,theApexCourtheldthat when there are many discrepancies in the evidence of prosecution witnesses, the accused is entitled for benefit of doubt'

30. For the foregoing reasons, I am of the considered opinion that the accused is entitled to benefit of doubt and the trial court without considering the discrepancies in tJle evidence of prosecution witnesses, found the accused guilty, which cannot be sustained' it i:

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' zooz(t) ar-t c.t. 272 (A.P.) i

31. Accordingly the conviction and sentenced recorded by the trial court is set aside and the appeal is allowed. The bail bonds i executed by the accused / appellant shall stand cancelled. 32- Interlocutory Applications pending, if any, shall stand closed.

sD/-B.S.CHt JOIN S //TRUE COPYII SEC N OFFICER NJEEVI To, 't. The Metropolitan Sessions Judge, at Hyderabad brf g^4)

2. The Sub-lnspector of Police, Tukaramgate police Station, Secunderabad.

3. Two CCs to Puplic Prosecutor, High Cou( for the State of Telangana, at Hyderabad.Qufl

4. One CC to SRl. NASEEB AFSHAN Advocate tOpUCl

5. Two CD Copies

6. One Spare Copy "r* i il { l i

HIGH COURT DATED:1410712022

JUDGMENT

CRL.A.No.1491 ot 2011 't''E 5T,CI€ \t'\ _) [ 1 N$l l-ltl () o() ial'

ALLOWING THE CRIMINAL APPEAL.

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