Partly allowed

Shaik Khadar Vali, Guntur Dt., v. the State of Ap., Rep Pp.

Andhra Pradesh HC28 Feb 2024CRLA/1020/2016

Case brief

AI extract

What is this about?

This court allowed the criminal appeal partly, setting aside the conviction and sentence under Section 302 IPC for murder. The accused was convicted for culpable homicide not amounting to murder under Section 304 Part-1 IPC and sentenced to rigorous imprisonment for 10 years.

What did the court decide?

Conviction and sentence under Section 302 IPC set aside; accused convicted under Section 304 Part-1 IPC and sentenced to rigorous imprisonment for 10 years and a fine.

Shaik Khadar Vali, Guntur Dt., Vs the… — Murder and Culpable Homicide | Andhra Pradesh HC (2024)

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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THURSDAY ,THE TWENTY NINETH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FOUR

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PRESENT

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HONOURABLE SRI JUSTICE K SURESH REDDY AND

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HONOURABLE SRI JUSTICE B V L N CHAKRAVARTHI

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CRIMINAL APPEAL NO: 1020 OF 2016

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Appeal under Section 374(2) of Cr.P.C against Conviction^and Sentence dated 16th day of May, 2016 awarded in S.C.No. 166 of 2015 on the file of the VI Additional District & Sessions Judge, Guntur, Guntur^District.

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Between;

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Shaik Khadar Vali, S/o. Mohamed Hanief, 33 years, 1st Line, Bapanaiah Nagar-1, Mangalagiri. ...Appellant/Accused

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AND

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The State of Andhra Pradesh, Rep. by its Public Prosecutor, High Court of Judicature At Hyderabad.

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...Respondent/Complainant

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Counsel for the Appellant; SRI. SURESH KUMAR REDDY KALAVA

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Counsel for the Respondents; Sri S Dhushyanth Reddy,^{AdditionalPublic} Prosecutor

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The Court made the following; JUDGMENT

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

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THURSDAY, THE TWENTY NINTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FOUR

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PRESENT:

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THE HON’BLE SRI JUSTICE K.SURESH REDDY

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AND

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THE HON’BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI

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CRIMINAL APPEAL No. 1020 OF 2016

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Between:

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Shaik Khadar Vaii, S/o. Mohamed Hanief, 33 years, 1st Line, Bapanaiah Nagar-l, Mangalagiri, Guntur District.

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... Appellant/Accused

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And

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The State of Andhra Pradesh, represented by its Public Prosecutor, High Court of Andhra Pradesh.

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... Respondent/Complainant

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Counsel for the Appellant(s) : Sri Suresh Kumar Reddy Kalava Counsel for the Respondent/State : Sri S.Dhushyanth Reddy Additional Public Prosecutor

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This Court made the following:

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J U D GHENT

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(Per Hon’ble Sri Justice B. V.L.N.Chakravarthi)

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Heard Sri Suresh Kumar Reddy Kalava, learned

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counsel for the appellant/accused and Sri S.Dhushyanth

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Crl.A.No.l020 of 2016 Dt: 29.02.2024

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KSR, J&BVLNC, J •

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Page 2 of 10

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Reddy, learned Additional Public Prosecutor for the respondent/ State.

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The appeal is filed by the sole accused in Sessions^Case No. 166 of 2015 on the file of VI Additional District and Sessions Judge, Guntur (hereinafter referred to as ‘trial Courf). The accused was tried and convicted by the trial Court for the offence under Section 302 of Indian Penal Code, 1860 (for brevity ‘IPC’) and sentenced to suffer rigorous imprisonment for ‘Life’ and also to pay a fine of Rs.500/-,ⁱⁿ default of payment of fine, to suffer simple imprisonment^for a period of fifteen (15) days.

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The substance of the charge is that on 31.10.2013 at about 10.30 PM the accused caused the death of his wife viz., Shaik Jameela (hereinafter referred to as ‘deceased’) by strangulation.

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Case of the prosecution, as culled out from the prosecution witnesses is as follows:

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P.W.l/Shaik Karishma is the daughter, P.W.2/Shaik Kahirunbi is the mother, P.W.3/Shaik Rajiya is the younger sister and P.W.5/Shaik Munwar Basha is the son of the

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KSR, J&BVLNC, J Crl.A,No.l020 of 2016 Dt: 29.02.2024 Page 3 of 10

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deceased. The marriage of the deceased and the accused was blessed with solemnized thirteen (13) years ago; they were P.W.l and P.W.5. P.W.l was studying VI class; P.W.5 was studying III class; the accused with his family, residing in Bapanaiah Nagar-I, Mangalagiri; the accused suspected the to home in a fidelity of the deceased; he used to come drunken state and quarrel with the deceased; the mother, account of the illP.W.2 was residing with the deceased on treatment of the accused; on^{31.10.2013atabout8.30PM} drunken state; he quarrelled the accused came to home in a with the deceased and went out; the deceased was sleeping in the front room; P.Ws 1, 2 and 5 were residing in the rear side of the room ; the accused came to house at 9.00 PM in a drunken state and quarrelled with the deceased; he took a saree and strangulated the deceased; she raised alarm; of the deceased, woke up and P.W.l, on hearing the cries came to the front room; she noticed the. accused the deceased; P.W.l raised cries; P.Ws 2 and 5 strangulating came to the front room and neighbours also gathered; on accused left the place; the seeing the neighbours, the

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Crl.A.No.l020 of 2016 KSR, J& BVLNC, J Dt: 29.02.2024

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Page 4 of 10 deceased was shifted to the hospital of P.W. 11/ Dr. A.Satyanarayana Reddy, where she was declared dead; P.W.l presented Ex.PI report to the P.W. 12/lnspector of Police; he registered the same as a case in Crime No.239^of 2013 vide Ex.P7, visited scene of offence i.e., house^ofthe deceased and accused, conducted inquest over the dead body in the presence of mediators and blood relatives vide Ex.P2/lnquest Report; he examined P.Ws 1 to 4 and recorded their statements; the dead body was shifted^tothe Government Hospital, Mangalagiri for Post-Mortem examination; P.W. 10/Civil Assistant Surgeon, Government Medical Hospital, Mangalagiri conducted post-mortem on 01.11.2013 and issued Ex. P6/Post-Mortem Certificate opining that the deceased died due to asphyxia on account^of strangulation.

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P.W. 12 examined P.Ws 5, 11 and others and recorded their statements. On 16.11.2013 P.W. 12 arrested the accused near old bus stand, Mangalagiri and filed the report (charge sheet).

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Crl.A.No.l020 of 2016 Dt: 29.02.2024

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KSR, J&BVLNC, J

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Page 5 of 10

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During trial, twelve (12) witnesses were examined on behalf of the prosecution as P.W.l to P.W.12 and eight (8) documents were marked as Ex.PI to Ex.P.8 apart from M.O.l/Saree (two pieces). When the accused was examined under Section 313 Cr.P.C., he denied the incriminating evidence found against him from the prosecution witnesses, but he did not choose to examine any witness in, his^defence.

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The trial Court after hearing the prosecution evidence, found the accused guilty for the offence under Section³⁰² IPC. Challenging the said Judgment, the appellant/accused preferred the present appeal.

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Sri Suresh Kumar Reddy Kalava, learned counsel for the appellant/accused would submit that the evidence on record did not establish the evidence under Section^302IPC against the accused. He would further submit that the evidence of P.Ws 1 and 5 would disclose that they are^child- witnesses at the material point in time, they were^tutoredby their paternal aunt i.e., P.W.2, to speak against the^accused and therefore, their evidence is not reliable and creditworthy. also He would further submit that t^i evidence of P.W.5

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Crl.A.No. 1020 of 2016 Dt: 29.02.2024 KSR, J & BVLNC, J Page 6 of 10

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doubtful, as prosecution failed to establish his presence at the time of incident. Therefore, there is no legal evidence on record to convict the accused.

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Learned counsel for appellant would submit further that the evidence on record did not not establish it is case of murder, and at the best it is only a case of culpable^homicide not amounting to murder; the material on record would show that there was quarrel between the deceased and accused and therefore, it was not a premeditated act; incident was happened in the heat of passion; there is no material on record to show that the accused had taken undue advantage in any manner.

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Per contra, Sri S.Dhushyanth Reddy, learned Additional Public Prosecutor, would argue that the evidence of P.Ws 1 to 5 would establish that the accused sat on the deceased and strangulated her with a saree; as a result, the deceased died; their evidence was corroborated by medical evidence as well the evidence of the Investigating^Officers.

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Crl.A.No.l020 of 2016 Dt: 29.02.2024 Page 7 of 10

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KSR, J&BVLNC, J

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In the light of the above contentions, the point that would arise for consideration in this Criminal Appeal^is;-

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“Whether the prosecution proved the case beyond all reasonable doubt?’’

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POINT:-

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We perused the evidence of P.Ws 1 to 5. It would establish that the accused and deceased living in the^house (scene of offence) located in Mangalagiri along with^their son and daughter i.e., P.Ws 1 and 5, respectively, along^with P.W.2, who is mother of the deceased.

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P.Ws 1 and 5 are aged about 15 years and 12 years, respectively, when they deposed before the trial Court.^Both the witnesses unerringly deposed that they witnessed^their father i.e., accused strangulating their mother due^toquarrel took place between them. The evidence of P.W.2 corroborate their evidence. We are of the opinion that the trial Court considered the evidence of child-witnesses with great^caution and found that they were not tutored.

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f! 14. P.W.4 evidence would establish that he is neighbour^to the accused and deceased. P.W.4 evidence would establish

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Crl.A.No.l020 of 2016 Dt: 29,02.2024 KSR, J&BVLNC, J

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Page 8 of 10

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that on 31.10.2013 night, he heard cries from the house of accused and immediately, he went there and found the accused strangulating the deceased, and on seeing the neighbours, the accused left the place. Thereafter, the neighbours and P.W. 1 shifted the deceased to the hospital of P.W. 11, who declared her dead.

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The contention of the appellant is that the trial Court failed to consider the ci circumstances occurred prior to the incident and erroneously convicted the accused for the offence under Section 302 IPC.

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We are of the considered opinion that the evidence on record discussed above would establish that the accused was suspecting the fidelity of deceased, and therefore, they were quarrelling frequently. The evidence also establish that on 31.10.2013 night. as usually they again quarrelled, the accused in the heat of passion, without any premeditation caught hold her neck and throttled it.

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The learned Additional Public Prosecutor also admit that the above and ci circumstances are made out from the evidence on record.

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Crl.A.No.l020 of 2016 KSR, J & BVLNC, J Dt: 29.02.2024 Page 9 of 10

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Therefore, considering the above facts and circumstances in the case, we are of the opinion that^thetrial Court failed to consider the above material facts and thereby erroneously convicted the accused for the offence under Section 302 IPC, instead of offence punishable under^Section 304 Part-1.

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In that view of the matter, the criminal appeal is^liable to be allowed partly setting-aside the conviction and^sentence under Section 302 IPC. Instead the accused be convicted^and sentenced for the offence Section 304 Part-I IPC. Accordingly, the point is answered.

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In the result, the Conviction and Sentence recorded by the VI Additional District and Sessions Judge, Guntur^vide Judgment, dated 16.05.2016 in Sessions Case No. 166 of 2015 against the appellant/accused for the offence^under Section 302 Indian Penal Code, 1860, is hereby set-aside. Instead the appellant/accused is convicted for the offence under Section 304 Part-I IPC and sentencerd to suffer Rigorous Imprisonment for a period of Ten (10) years^andto pay a fine of Rs.500/- (Rupees five hundred only),^indefault

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KSR, J&BVLNC, J

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Crl.A.No.l020 of 2016 Dt: 29.02.2024

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Page 10 of 10

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of payment of fine amount, he shall undergo imprisonment

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for a period of fifteen (15) days. Accused is entitled^tosetoff

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under Section 428 CrPC.

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SDI- S.V.S.R.MURTHY JOINTvREGISTRAR

//TRUE COPY//

To,

SEC OFFICER

The VI Additional District & Sessions Judge, Guntur, Guntur District, (with records)

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The Additional Junior Civil Judge, Mangalagiri, Guntur^District.

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The Superintendent, Central Prison, Rajahmundry, East^{GodavariDistrict.}

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The Inspector of Police, Mangalagiri Town Police Station, Guntur District.

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One CC to Sri. Suresh Kumar Reddy Kalava, Advocate [OPUC]

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One CC to Sri. S Dhushyanth Reddy, Advocate.[OPUC]

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Two CCs to the Public Prosecutor, High Court of Andhra Pradesh^at Amarvati.[OUT]

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The Section Officer, Criminal Section, High Court of Andhra Pradesh^at Amaravati.

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Three CD Copies

VNA

AP-

HIGH COURT

. V DATED:29/02/2024

ORDER

CRLA.No.1020 of 2016

m
,g 0 6 MAR 202^1 Os
^ . Current Section
H^esPATCH^

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Copies APF

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PARTLY ALLOWING THE CRIMINAL APPEAL

Shaik Khadar Vali, Guntur Dt., v. the State of Ap., Rep Pp.

Case brief

What is this about?

What did the court decide?

Shaik Khadar Vali, Guntur Dt., v. the State of Ap., Rep Pp.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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