Andhra HC (Pre-Telangana)
Md. Khadeer Alias Khadeer vs The State Of Andhra Pradesh Through The ... on 21 January, 2000
Equivalent citations: 2000(1)ALD(CRI)643, 2000(1)ALT(CRI)398
JUDGMENT Motilal B. Naik, J.
1. All these appeals arise out of the judgment in Sessions Case No.20 of 1994, dated 29th June, 1996 on the file of the Metropolitan Sessions Judge, Hyderabad.
2. Before the trial Court, the accused were tried for the following charges, viz., FIRSTLY, that you A-1 to A-3 on or about 23-2-1993 at about 7.45 PM at Red Hills, Hyderabad, in furtherance of your common intention, did commit murder by intentionally or knowingly causing the death of Haji Mohd. Yakub by stabbing him with knives and that you thereby committed an offence punishable u/s 302 r/w 34 IPC ;
SECONDLY, that you A-1 to A-3 on or about 23-2-1993 at about 7-45 PM at Red Hills, Hyderabad in furtherance of your common intention, committed robbery of property of net cash of Rs.2,32,018/- and eight demand drafts for Rs.1,60,000/- belonging to Haji Mohd. Yakub and that you thereby committed an offence punishable u/s 392 r/w 34 IPC;
THIRDLY, that you A-1, on the date, time and place as mentioned in charge No.1 supra and during the course of same transaction, were found in possession of a knife, in a notified area, without being in possession of a licence duly issued in this behalf by a competent authority appointed by Government and that thereby committed an offence punishable u/s 25 (1B) of the Arms Act;
FOURTHLY, that you A-2 on the date, time and place as mentioned in charge No.1 supra and during the course of same transaction, were found in possession of a knife, in a notified area without being in possession of a licence duly issued in this behalf by a competent authority appointed by Government and that thereby committed an offence punishable u/s 25(1B)(a) of the Arms Act;
FIFTHLY, that you A-3 on the date, time and place as mentioned in charge No.1 supra and during the course of same transaction, were found in possession of a knife, in a notified area, without being in possession of a licence duly issued in this behalf by a competent authority appointed by Government and that thereby committed an offence punishable u/s 25(1B)(a) of the Arms Act;
SIXTHLY, that you A-1 to A-4 on the date, time and place as mentioned in charge No.1 supra and during the course of same transaction, agreed to kill Haji Mohd. Yakub, an illegal act by stabbing him to death and was done in pursuance of the said agreement and thereby committed an offence punishable u/s 302 IPC read with Section 120-B(i) IPC;
SEVENTHLY, that you A-1 to A-4, on the date, time and place as mentioned in charge No.1 supra and during the course of the same transaction, agreed to do an illegal act, i.e., robbed Haji Mohd. Yakub by taking Rs. 2,32,018/- cash and eight demand drafts worth Rs.1,60,000/- after killing him and was done in pursuance of the said agreement and that thereby committed an offence punishable under section 392 IPC read with section 120-B(i) IPC;
EIGHTHLY, that you A-5, on the date, time and place as mentioned in charge No.1 supra and during the course of the same transaction after murdering Haji Mohd. Yakub by A-1 to A-3 with the criminal conspiracy of A-4, you A-5 harboured A-1 to A-4 knowing or having reason to believe them to be the offenders with the intention of screening them from legal punishment that you thereby committed an offence punishable u/s 302 IPC read with section 212 IPC;
NINETHLY, that you A-5, on the date, time and place as mentioned in charge No.1 supra and during the course of same transaction, you A-1 to A-3 robbed Haji Mohd. Yakub for a sum of Rs.2,32,018/- and eight demand drafts for Rs.1,60,000/- with the criminal conspiracy of A-4, you A-5 harboured you A-1 to A-4 knowing or having reason to believe them to be the offenders with the intention of screening them from legal punishment and that you thereby committed an offence punishable u/s 392 IPC read with section 212 IPC;
TENTHLY, that you A-5, on the date, time and place as mentioned in charge No.1 supra and during the course of same transaction dishonestly received stolen property of Rs.5,000/- belonging to Haji Mohd. Yakub, knowing or having reason to believe the same to be stolen property and that you thereby committed an offence punishable u/s 411 IPC.
3. The trial Court found A1 to A3 not guilty of the charge under Section 302 IPC read with Sec.34 IPC, however found them guilty of the charges under Sections 304 part I IPC read with Sec.34 IPC and sentenced them to suffer rigorous imprisonment for a period of ten years each. The trial Court also found the accused 1 to 3 guilty of the charge under Section 392 read with Sec.34 IPC and sentenced them to suffer rigorous imprisonment for a period of seven years each and directed both the sentences shall run concurrently. The trial Court found A1 to A3 not guilty of the other charges framed against them and acquitted them of the same. The trial Court found A4 and A5 not guilty of the charges framed against them and acquitted them of the same.
4. Crl.A.No.660 of 1996 is filed by A3 through Jail, Crl.A.No.717 of 1996 is filed by A1 to A3 through the counsel, Crl.A.No.916 of 1996 is filed by A2 through Jail and Crl.A.No.1011 of 1996 is filed by the State assailing the judgment in S.C.No.20 of 1994, dated 29th June, 1996.
5. The case of the prosecution in a nut-shell is as follows:-
A.4, an ex-employee of the deceased, conspired with the city dossier criminals A1 to A3 and his friend A5 for robbing the deceased even by liquidating the deceased. In pursuance of the said conspiracy, A4 took A1 to A3 to the shop of the deceased on 19.2.1993 and on 20.2.1993 between 7 P.M. and 7.30 P .M., showed the deceased, his car and the route through which the deceased used to go to his house. On 22.2.1993 around 7.30 P.M. A1 to A3 waited for the deceased near his house having armed with weapons to rob and kill him. Because of the presence of several people, they could not succeed and went away. Again on 23.2.1993 around 7.30 P.M. ,on the information given by A4, A1 to A3 went to the house of the deceased on a stolen chetak scooter armed with knives. A2 was also in possession of chilly powder water container in his hand. When the car of the deceased arrived, A1 to A3 kept their scooter in motion and after the driver (PW.2) opening the right side rear door of the car and went to the other side to collect Tiffin carrier, A1 to A3 attacked the deceased by stabbing him with knives indiscriminately. When the driver went to rescue the deceased, A2 threw chilly powder water on his face and on the shouting of the driver (Pw2), A1 to A3 indiscriminately stabbed the deceased with knives and snatched away the cash bag (M.O.4) and fled away on the scooter. According to the prosecution, this incident was witnessed by PWs.2, 3, one Idris Ali Khan and PW.4.
6. According to prosecution, A1 to A3 went to the house of A5, where A4 was waiting for them and there the accused distributed the booty by sharing, A1 collected Rs.1,07,000, A2 collected Rs.61,000, A3 collected Rs.50,000 and A4 and A5 were paid Rs.9,000 and Rs.5,000 respectively. A1 later purchased LML T5 Vespa scooter out of his share of booty and also went to Zaheerabad and lost some booty in Satta. A2 and A3 repaid loans to one Lal Mohammad and Md. Younus. On their arrest and in pursuance of their confession, from A1 an amount of Rs.50,000 cash was recovered along with M.O.4 cash bag. M.O.6 the knife used by A1 in the commission of offence was also recovered from the ventilator of his house and his bloodstained clothes M.Os.9 and 10 were also recovered from the almairah in the presence of mediators in pursuance of the confession statement made by A1. On the basis of the confession made by A.2, the knife used by him in the commission was also recovered and his bloodstained clothes were also recovered. On the basis of the confession made by A3, the weapon used by him in the commission of the offence M.O.8 was recovered and his bloodstained clothes M.Os.11 and 13 were also recovered from his house under cover of panchanama. PWs.2 to 6 identified A1 to A3 in the test identification parade conducted by PW.28.
7. On the basis of PW.2 informing the incident to PW.1, PW.1 gave a written complaint under Ex.P.1 around 8.45 P.M. on 23.2.1993 upon which a case in Cr.No.30 of 1993 under Sec.302 and 379 of IPC was registered and F.I.R. under Ex.P.43 was issued. A panchanama of scene of offence was conducted and M.Os.15, 16, 24 and 25 were seized from the scene of offence. A rough sketch of scene of offence was also prepared.
8. On 24.2.1993 PW.30 Inspector of Police took up further investigation from PW.27 and on the same day he visited the mortuary and held inquest over the dead body of the deceased in the presence of PW.19 and others. Ex.P.38 is the inquest report. The dead body was sent for postmortem examination. PW.8 Professor of Forensic Medicine, conducted autopsy over the dead body of the deceased and issued Ex.P.5 postmortem examination certificate. According to PW.8 the cause of death is due to stab injuries. PW.2 was sent to Sarojanidevi Eye Hospital, where PW.7 examined him and issued Ex.P.4 medical certificate.
9. PW.30 conducted further investigation and examined the witnesses and all the persons working in the shops of the deceased. Investigation was later given to the Sub Inspector of Police, Detective Department, Hyderabad.
10. On 25.5.1993 around 6.30 P.M. while PW.24 Sub Inspector of Police, Shalibanda P.S. who was on frisking duty intercepted A1 to A3 who were coming on a scooter. A1 caught hold of the shirt collar of a constable and tried to escape. He was overpowered and a knife was recovered from his pocket. Police found three swords and one dagger in the dickey of the scooter. A.1 to A.3 were arrested on 25.5.1993 and a case in Cr.No.33 of 1993 was registered. A.1 to A.3 were produced before PW.32, who interrogated them. The confession of A.1 led to the recovery of wrist watch, cash etc. which were seized under cover of panchanama prepared in the presence of PW.14. As indicated above, A3 produced M.O.8 which was seized under Ex.P.28 panchanama in the presence of mediators.
11. On 7.8.1993 PW.33 Inspector of Police, Murder Team II D.D. took up further investigation from PW.31 and recorded the confessional statement of A2 in the presence of PW.17 and another, which led to recovery of M.Os.7, 12 and 14. A1's confessional statement further led to the recovery of M.Os.6, 9, 10,11 and 13 from his house. On 16.3.1993 PW.28 the VI Metropolitan Magistrate, Hyderabad received requisition for conducting test identification parade. On 26.6.1993 he conducted test identification parade at Musheerabad Jail. PWs.3 to 6 and one Idras Ali Khan identified A1 to A3 in the said test identification parade. Ex.P.51 is the requisition received by the Magistrate and Ex.P.52 is the test identification proceedings. Again a test identification parade was conducted ion 28.7.1993 under Ex.P.53 in which PW.2 identified A1 to A3.
12. After completion of investigation PW.33 Inspector of Police filed charge sheet.
13. In order to substantiate its case, the prosecution examined as many as 33 witnesses and got marked Exs.P.1 to P.62 and M.Os.1 to 26. On behalf of defence nobody was examined, but however Exs.D1 to D7 were marked. Ex.D1 is the portion marked in 164 Cr.P.C. statement of PW.2. Ex.D2 is the portion marked in 161 Cr.P.C. statement of PW.2. Ex.D3 is the portion marked in 161 Cr.P.C. statement of PW.4. Ex.D4 is the portion marked in 164 Cr.P.C. statement of PW.6. Exs.D5 to D7 are the portions marked in confessional statements of A1 to A3(Exs.P.24 to P.26) respectively .
14. The trial Court, in the light of the incriminating circumstances available against the accused, questioned the accused under Section 313 Cr.P.C. All the accused pleaded not guilty. But, however, the trial Court found A4 and A5 not guilty of the charges framed against them and acquitted them. However, the trial Court though found A1 to A3 not guilty of the offence under Sec.302 IPC read with Sec.34 IPC, but found them guilty of the offence under Sec.304 Part I read with Sec.34 IPC, convicted them of the same and sentenced them to suffer rigorous imprisonment for a period of ten years each. The trial Court also found A1 to A3 guilty of the offence under Sec.392 IPC read with Sec.34 IPC, convicted them of the same and sentenced them to suffer rigorous imprisonment for a period of seven years each. However, the trial Court found A1 to A3 not guilty of the other charges framed against them and acquitted of the same, by its judgment dated 29.6.1996. It is this decision, which is challenged in these appeals.
15. We have heard Mr. C. Padmanabha Reddy, learned Senior Counsel, who has appeared on behalf of A1 to A3, though three different appeals were filed i.e. Crl.A.No.916 of 1996 is filed by A2 through jail, Crl.A.No.660 of 1996 is filed by A3 through jail and Crl.A.No.717 of 1996 is filed by A1 to A3 through an advocate. We have heard the learned Public Prosecutor, who filed Crl.A.No.1011 of 1996 on behalf of the State against all the accused. As far as A1 to A3 are concerned, as indicated above, Mr. C. Padmanabha Reddy is representing them. As far as A4 is concerned, it is found by us that A4's whereabouts were not known and the prosecution-State expressed its inability to serve notice on A4 in the appeal filed by the State. As far as A5 is concerned, Mr. K. Ravinder Rao is representing him, advocate.
16. The learned Public Prosecutor, who sought conviction of all the accused i.e. A1 to A5 against various charges, while advancing his arguments in Crl.A.No.1011 of 1996, submitted that the evidence of prosecution clinchingly shows the involvement of all the accused in the offence and the trial Court committed an error in acquitting A4 and A5 of all the charges. The learned Public Prosecutor also submitted that though the involvement of A1 to A3 in causing the death of the deceased as well as looting of the cash from the deceased is well proved by the efforts made by the prosecution, particularly through the evidence of PWs.2 to 6 who have seen the incident while A1 to A3 were inflicting injuries on the deceased on 23.2.1993, the trial Court failed to appreciate this evidence of prosecution witnesses and erroneously came to the conclusion that the evidence available against A1 to A3 failed to show that A1 to A3 had an intention to kill the deceased for robbing the cash. He further submitted that while coming to such erroneous conclusion, the trial Court found A1 to A3 guilty of the offence under Sec.304 Part I and gave lesser punishment of ten years rigorous imprisonment each, though the evidence of eye witnesses i.e. Pws.2 to 5 clinchingly shows that A1 to A3 had inflicted injuries on the deceased with knives, which were recovered on the basis of their confessional statements, due to which the deceased succumbed to the injuries. The learned Public Prosecutor found fault with this erroneous conclusion of the trial Court and stated that A1 to A3 are liable for punishment under Section 302 IPC for committing the murder of the deceased. According to the learned Public Prosecutor, as per the version of PW.6 who spoke about A4's presence near the shop of the deceased in the company of A1 to A3 on 19.2.1993, on 20.2.1993 and about the presence of A1 to A3 on 22.2.1993 near the shop of the deceased and the presence of A4 on 23.2.1993 around 5 P.M. at the shop of the deceased, which clinchingly established that A4 had conspired with A5 being his friend and in pursuance of their conspiracy, they not only looted the deceased, but also killed him, and therefore, pleaded that the finding of the Court below as far as A4 and A5 is concerned is to be reversed.
17. The learned Senior Counsel Mr. C. Padmanabha Reddy, who appeared on behalf of A1 to A3 and filed separate appeal as indicated above, on the contrary, contended that the finding of the Court below convicting A1 to A3 for the offences under Sections 304 Part I read with Sec.34 IPC and 392 IPC is not justified. The learned counsel stated that PW.2, claims to be the driver of the deceased, was only appointed just 15 days prior to the date of incident, the evidence of PW.2 is rosy and not clinchingly showing the overt acts of each of A1 to A3. The learned counsel stated that according to prosecution, the incident took place around 7.45 P.M. on 23.2.1993 in front of the house of the deceased and that being evening hours, it would not have been possible for PW.2 to notice each accused carefully and describe their features, narrating the incident and involvement of the accused. According to the learned counsel, PWs.3 and 4 are planted witnesses, one of them was examined after three days of the incident and the other was examined after four days of the incident. The learned counsel contended that if at all they had witnessed the incident, they would have definitely informed somebody, but on the contrary PWs.3 and 4 deposed before the trial Court that they did not inform anybody, it is only after 3 or 4 days they were called to police station and they narrated the version. Even otherwise, according to the learned counsel, the police has given no explanation as to how PWs.3 and 4 were picked up. Coming to the evidence of PW.5, the learned Senior Counsel stated that as per the version of PW.5, he only stated that he saw the accused from backside, it is therefore, highly improbable to accept his version as to how he could have identified the accused in test identification parade. According to the learned counsel, A1 to A3 were arrested on 25.5.1993 by PW.32 and a case in Cr.No.33 of 1993 was registered, they were produced before the Magistrate, they were remanded to judicial custody and police custody of the accused was obtained till 31.5.1993. According to the learned counsel, PW.33 Inspector of Police obtained police custody of A1 to A3 from 9.6.1993 to 14.6.1993 for a period of 9 days, on the basis of the requisition given to the Magistrate on 16.6.1993, test identification parade was held on 26.6.1993 for PWs.2 to 6, but PW.2 did not attend it and only Pwsa.3 to 6 attended, and second test identification parade was held on 28.7.1993 to facilitate PW.2 to identify A1 to A3. According to the learned Senior Counsel, the first test identification parade was held after four months of the incident and one month after the arrest of A1 to A3. He further submitted that the witnesses gave no descriptive particulars of A1 to A3 to the Magistrate. According to the learned counsel, when the witnesses have stated some special features of the accused, the Magistrate should have taken precautions and mixed the persons having similar features to make test identification a fool proof procedure. The learned counsel stated that identification of A1 to A3 by PWs.3, 4 and 5 cannot be believed as they are planted witnesses and they had seen A1 to A3 earlier when they were in police custody. The learned Senior Counsel stated that the evidence of PWs.2 to 5 who claimed to be eye witnesses failed to repose confidence in the prosecution version and stated that the Court below was not justified in finding A1 to A3 guilty of the offences under Sections 304 Part I read with Sec.34 IPC and 392 read with S.34 IPC and imposing punishment for the said offences.
18. Since the State has also filed appeal against the acquittal of A1 to A5 for the charges under Sec.302 IPC and under Sec.25(1B)(a) of Arms Act and also against the acquittal of A4 and A5 from all the charges, and A1 to A3 have filed separate appeals against their conviction, who are represented by Mr. C. Padmanabha Reddy, Senior Counsel, we have carefully scrutinized the evidence let in on behalf of the prosecution in support of its case. In so far as A4 and A5 are concerned, we must at the outset say though notices have not been served on A4, and A5 being represented by Mr. K. Ravinder Rao, advocate, since the trial Court acquitted A4 and A5 from all the charges, we have examined first about the intricacies against A4 and A5. PW.6, claims to be an employee working under the deceased, speaks about the presence of A4 on two occasions in the company of A1 to A3. On a further scrutiny of the evidence of PW.6 and other prosecution witnesses, we find nothing indiscriminating.
19. The charge against A4 is that he conspired along with A1 to A3 in committing the murder of the deceased and robbing the cash from him. The charges against A5 are under Sections 302 IPC read with Sec.212, 392 IPC read with Sec.212 and 411 IPC. If this is to be true, there is no evidence available against A4 and A5 to show that they received share from the booty. Even the version of PW.6 that A4 visited the shop of the deceased in the company of the accused 1 to 3 on 20.2.1993 and A4 visited the shop of the deceased on 23.2.1993, the prosecution is unable to satisfactorily prove the involvement of A4 and A5 in causing the death of the deceased and sharing the booty. The lower Court, in our view, was justified in acquitting A4 and A5 from all the charges. We are persuaded to accept that finding of the trial Court and we confirm the same. Though notices have not been served on A4, since we find the acquittal against A4 by the trial Court is proper, we confirm the acquittal order passed by the trial Court relating to A4 also.
20. The next crucial aspect of the submissions of the learned Public Prosecutor is, whether the trial Court was justified in acquitting A1 to A3 of the charge under Sec.302 IPC read with Section 34 IPC and was justified in only finding A1 to A3 guilty of the offence under Sec.304 Part I IPC read with Sec.34 IPC and under Sec.392 IPC read with Sec.34 IPC.
21. Though the learned Senior Counsel for A1 to A3 Mr. C. Padmanabha Reddy has attacked the judgment of the lower Court to the extent of the finding against these three accused, we do not think the submission should be accepted, inasmuch as, the evidence let in by the prosecution has clinchingly proved the involvement of A1 to A3 in the offence. PW.2, the driver of the deceased, who was on wheels on 23.2.1993 brought the deceased to his residence around 7.45 P.M. According to PW.2 after reaching the house of the deceased, he got down from his seat and opened the right side rear door of the car while switching on the lights inside. He then went to the left side of the door in order to pick up Tiffin carrier. He noticed the deceased along with M.O.4 (cash bag) trying to get down the car. He deposed that while the deceased was getting down from the car, he noticed A1 to A3 pouncing on the deceased and inflicting injuries with knives, when he tried to rescue the deceased, A2 threw liquid on him, as a result he felt burning sensation and he shouted for help. He also deposed that when he shouted for help, A1 to A3 hasten up indiscriminate attack on the deceased and took away M.O.4(cash bag), and they ran away towards the scooter, which was in motion. He further deposed that A1 drove the scooter, A2 was sitting behind him and A3 was sitting behind A2 and they left the scene of offence.
22. PW.3 deposed that himself along with his friend Idris Ali Khan went to the house of a friend by name Afsar, who is also a resident of Red Hills area, he was waiting along with his friend Idris Ali Khan for his friend's arrival, near water tank and he noticed A1 to A3 pouncing on the deceased, A2 snatching away the cash bag from the deceased, A1 driving the scooter, A2 and A3 sitting on the scooter and leaving the scene of offence. PW.4, a stranger, waiting for his friend, spoke that on 23.2.1993 he was waiting for his friend who to mosque to offer prayer. He further deposed that he noticed three persons waiting on a chetak scooter. He also deposed that two persons were standing near water works. He further deposed that he noticed the deceased being stabbed by A1 to A3. PW.5, watchman of the mosque, also spoke about A1 to A3 going on a scooter. He deposed that he is a watchman of the mosque, on hearing the shouts as "Bachav, Bachav" he came near the car and noticed A1 to A3 going on a scooter. This evidence of PWs.2, 3, 4 and 5, in our view, clinchingly establishes the presence of A1 to A3 and their participation in the crime. PW.2 though driver of the car, the evidence of PWs.3 to 5 supports the version of PW.2. There is no reason for PWs.3 to 5 to speak against A1 to A3. We are, therefore, of the view that the evidence of PWs.2 to 5 is reliable and fixes the presence of A1 to A3 at the time of the incident and their involvement in causing injuries to the deceased and going away with the cash bag (M.O.4).
23. Though the learned counsel for A1 to A3 contended that PWs.3 and 4 are planted witnesses, we do not think such submission could be accepted. Efforts though made in the cross-examination of these witnesses at length to discredit their version made in chief-examination, the defence was unable to extract a different version in their cross-examination. Likewise efforts were also made in cross-examination of PW.5, but nothing has been elicited on behalf of accused to discredit the version of PW.5 made in chief-examination. PW.2, the driver of the car, who is a prime witness, spoke about the incident inch by inch. A lengthy cross-examination has been made to deter this witness, but however, we have not found any substantial variations in his cross-examination, which would entitle the accused 1 to 3 the benefit from the variations in the cross-examination of PW.2.
24. In so far as the attack of the learned Senior Counsel for A1 to A3 with regard to the procedure and the manner in which test identification parades were held, PW.28 the Magistrate, who conducted test identification parades has spoken to and explained the procedure followed by him. Minor discrepancies, though found by us, but those minor discrepancies are not of such magnitude to hold that the test identification parades are farce. The learned Senior Counsel made efforts to convince us that A1 to A3 were apprehended and police custody was given and A1 to A3 were seen by the witnesses PWs.2 to 5 in the police custody. But all the witnesses have denied in their cross-examination that they had seen A1 to A3 in police custody. These witnesses have identified A1 to A3 in the Court also, apart from identifying A1 to A3 in the test identification parade. The witnesses have spoken to about their seeing A1 to A3 on the date of incident also. Thus we have no reason to accept the submission made by the learned Senior Counsel that the test identification parades are only a farce and conducted in a routine manner. Much ado was made about the test identification parades being held after four to five months of the incident. It is to be seen though the incident had taken place on 23.2.1993, A1 to A3 were arrested on 25.5.1993 around 6.30 P.M. by PW.24 while he was on frisking duty along with Sub Inspector of Police Mr. N. Shyam Prasad Rao and staff at Asha Talkies Tea junction. According to PW.24, A1 to A3 were found coming on a scooter from Nagulchinta side, when intercepted and checked the persons on the scooter, A1 caught hold of the shirt collar of one constable and tried to escape, but accused 1 to 3 were overpowered and retained. PW.24 further deposed that on checking, they found one knife in the pocket of A1, three swords and one dagger in the scooter dickey and the weapons and the scooter were seized under cover of panchanama in the presence of mediators and A1 to A3 were produced before the Inspector of Police, Shalibanda Police Station, upon which a case in Cr.No.33 of 1993 under Sections 353 IPC and 25 of Arms Act was registered. According to PW.24 A1 to A3 were interrogated and their confessional statements were recorded which led to the recovery of M.O.4(cash bag) containing Rs.50,000 cash and other material objects.
25. Though the incident had taken place on 23.2.1993, A1 to A3 were apprehended only on 25.5.1993. After apprehension, on their confession about committing an offence in connection with another case, A1 to A3 also confessed about their involvement in the death of the deceased, which led to the recovery of material objects including the knives and cash bag etc. PW.33 Inspector of Police obtained police custody of A1 to A3 from 9.6.1993 to 14.6.1993 for further investigation and interrogation. Thereafter on 16.,6.1993 requisition was given to PW.28 to conduct test identification parade, accordingly first test identification parade was held on 26.6.1993 in which PWs.3 to 6 participated, and another test identification parade was held on 28.7.1993, in which PW.2 participated. In view of the arrest of A1 to A3 in the month of May, 1993 and later they were given to police custody by the Court for interrogation, there was some delay in holding test identification parade. It is because of the accused who were absconding since the date of offence, which took place on 23.2.1993, we are of the view that this submission made by the learned Senior Counsel in the light of the facts placed before us, is not sustainable.
26. We are convinced with the evidence let in by the prosecution about the involvement of A1 to A3 in so far as the happenings on 23.2.1993. The oral evidence let in by prosecution about the involvement of A1 to A3 about their inflicting injuries on the deceased indiscriminately with knives is also supported by the medical evidence of PW.8, who conducted postmortem examination on the body of the deceased. PW.8 deposed that he found as many as 14 external injuries and two internal injuries on the body of the deceased. According to PW.8 the cause of death is due to stab wounds associated with head injury. PWs.14 is the panch witness before whom A1 to A3 voluntarily made confessional statements, which lead to the recovery of material objects. His evidence is unimpeachable and supported by the evidence of PW.17, who was also acted as panch witness for recording additional confessional statements of the accused 1 to 3 and for recovery of weapons and cash etc. The evidence of PW.17, who is an independent witness and an engineer by profession, cannot be disbelieved, as there is no reason for him to speak falsehood against A1 to A3. PW.23 spoke about A1 purchasing a scooter on 24.2.1993 from his shop for consideration of Rs.24,000, which assumes significance in the light of the incident taking place on 23.2.1993 wherein A1 to A3 went away with booty of more than two lakhs rupees. PW.33 Investigation Officer, who took up further investigation spoke about the efforts made by prosecution.
27. The trial Court has found A1 to A3 guilty of committing only the offence under Sec.304 Part I IPC read with Sec.34 IPC and sentenced them to suffer rigorous imprisonment for a period of ten years each. This finding of the trial Court recorded at page No.25 of its judgment, in our view, is not proper. The trial Court's finding is as under:
"From this evidence of PW.8, it is not possible to gather that A1 to A3 had intended to kill the deceased for robbing the cash. But A1 to A3 had caused injuries perhaps which was sufficient in the ordinary course of nature to result in the death as stated by PW.8. Therefore, A1 to A3 cannot be found guilty of the offence under Sec.302 IPC, but, they can be held to be guilty of the offence punishable under Section 304 Part I IPC read with Section 34 IPC."
28. The trial Court further found thus :
"The accused could be held guilty of the offence punishable under Section 392 IPC read with Sec.34 IPC."
29. In the light of the evidence of PWs.2, 3,and 4 who spoke about the participation of A1 to A3 in inflicting stab injuries to the deceased, it would be difficult for us to accept the view of the trial Court holding that there is no intention on the part of Accused 1 to 3 to kill the deceased for robbing the cash. Section 300 IPC defines 'murder'. It provides punishment under Section 302 IPC. There are four facets brought to Section 300 IPC. If the acts of the accused fall within the purview of these facets, accused are to be held to have committed the offence of murder as defined under Sec.300 IPC and are liable for punishment under Section 302 IPC. On the contrary, if the acts of the accused fall within the five exceptions provided in Section 300 IPC, then the culpable homicide may not amount to murder and punishment shall be imposed only under Sections 304 part I or 304 part II of IPC.
30. In the light of the evidence and in view of the finding of the trial Court, it is necessary for us to examine, whether the act of inflicting injuries by A1 to A3on the deceased, which resulted in the death of the deceased, falls within the four facets provided under Section 300 IPC. In our view, the third facet brought to Section 300 IPC is relevant to fix liability on the accused 1 to 3, which reads as under:
"If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in ordinary course of nature to cause death"
31. It has come on record through the evidence of PWs.2 to 4 that A1 to A3 have intentionally caused bodily injury on the deceased in order to make him immobile and to take away the money carried by the deceased. If the offender with the intention of causing bodily injury, inflicts an injury, which in the ordinary course of nature causes the death of the person, then such an act would definitely fall within the ambit of clause 'thirdly' of Section 300 IPC, and it shall amount to murder.
In order to attract the exceptions brought to Section 300 IPC, when culpable homicide not amounting to murder, as indicated above, five exceptions are brought to this Section. The first exception being that a person acts in a provocation and if the offender exercises the acts in good faith of right of private defence , the offender being public servant or aiding public servant acting for the advancement of public purpose and in good faith without ill will causes death of a person, a murder is caused without premeditation in a sudden fight in the heat passion upon a sudden quarrel, or when the person whose death is caused being above the age of 18 years suffers death or takes risk of death in his own consult, then the likely punishment to be imposed on the accused is under Section 304 part I or 304 part II IPC depending upon the circumstances. In this case, we do not think the acts of A1 to A3 could be brought under the exceptions brought to Section 300 IPC. The acts of the accused, as indicated above, undoubtedly fall within the third facet of Section 300 IPC and would not fall within the exceptions, and therefore, A1 to A3 shall be held to be guilty of committing the murder of the deceased and they are liable to be punished under Section 302 read with Sec.34 IPC. The trial Court, in our view, has not given justifying reasons to extend benefit to A1 to A3, bringing their acts within the ambit of Section 304 part I IPC. We are therefore, of the view that the contention of the learned Public Prosecutor is justified in this regard and we modify the conviction and sentence imposed by the trial Court on A-1 to A-3. We accordingly, find A1 to A3 guilty of committing the murder of the deceased punishable under Section 302 IPC read with Section 34 IPC and sentence them to undergo imprisonment for life. To that extent the judgment of the lower Court is modified. In so far as the punishment of sentence imposed by the trial Court against A1 to A3 for the offence under Section 392 IPC read with Sec.34 IPC is concerned, we decline to interfere with it and we confirm the conviction and sentence on A-1 to A-3 on that count.
32. Crl. Appeal No.1011 of 1996, in so far as it relates to A4 and A5, is dismissed and the judgment of the trial Court is confirmed. In so far as the conviction and sentence of A1 to A3 is concerned, we find A1 to A3 guilty of the offence under Section 302 IPC read with Section34 IPC and sentence them to undergo imprisonment for life. To that extent the appeal filed by the State is allowed and the rest of the judgment of the Sessions Court is confirmed.
33. Criminal Appeals 660, 717 and 916 of 1996 filed by A-1 to A-3 shall stand dismissed.