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2007 Supreme(AP) 470
Andhra Pradesh High Court
Judges : A.GOPAL REDDY, K.C.BHANU
Syed Muqtar Ahmed - Appellant
Versus
State of A.P., rep. by Public Prosecutor, Hyderabad - Respondent
Decided On : 04/24/2007
Case No : Criminal Appeal Nos.1589 of 2004, 1821 of 2004 & 1903 of 2004
Headnote:
Indian Penal Code, 1860 – Sections 374, 164, 120, 302 – Sections 3, 4, 5, 6, 25, 27 – Indian Arms Act, 1878 – offence of Murder - Appeals are filed under Sections 374 challenging conviction and sentence recorded in judgment in Sessions Case on file of Additional Metropolitan Sessions Judge for trial of Jubilee Hills Car Bomb Blast Case-cum-Additional Family Court filed Criminal Appeal accused, which are activists of Indian Muslim entered into a criminal conspiracy with their associates to do away with life of deceased at about deceased was discussing business matters with P.W.30 who came from Coimbatore, in his jeweler shop – At that time, an unidentified person entered the shop, fired at the deceased and ran away. On that the deceased came out of the counter and fell down. P.W.1, who is son of the deceased, and some salesmen were present at that time deceased was shifted to General Hospital in an auto-rickshaw where he was declared dead gave Ex.P1-report in Afzalgunj police station to P.W.69-C.I. of Police. On that he visited scene of occurrence and found two empty cartridges. He also noticed a white colour carry bag in a corner of footpath near an electric pole and a tree to the south east of Jewelers shop – He also noticed a metallic G.I. pipe with wires connected to a plastic box. They were seized in the presence of P.W.63. He also prepared Ex.P69-observation report and Ex.P70-rough sketch – On he held inquest on the dead body of deceased and sent it for post-mortem examination. P.W.32-Assistant Professor, Forensic Medicine conducted autopsy – He found a firearm injury in front of right lower neck and opined that the death was due to firearm injury to the neck structures and left lung. Ex.P27 is the post-examination certificate – Held, Though P.W.6 stated that A.1 was sending fax messages from his booth, copies of those fax messages sent by A.1 were not made available. Similarly, the evidence of P.W.7 would go to show that A.1 was using internet service in his Internet. For what purpose A.1 was using internet is not known. With regard to sending they do not indicate about the conspiracy to kill deceased Prasad So, these documents do not prove conspiracy among the accused. Therefore, from above evidence, making telephone calls to cell no. 9848094817, which is telephone number of A.1, by some of the accused or sending E. Mails or by A.3, is not sufficient to infer criminal conspiracy among the accused with regard to doing of an illegal act, or an act, which is not illegal, by illegal means. At best, the evidence would go to show that A.1 was sending fax messages and he was also receiving fax messages. It is A.1, who used to download Emails. No doubt, Ex.P20, which is telephone call details produced by P.W.23, shows that A.5 and A.9 used to call to cell number of A.1. But that does not lead to an inference that there was a conspiracy. But, in view of the confessional statements of A.6 and A.7 in Exs.104 and 98 respectively, they knew about killing of deceased by A.1 and therefore it can be said that A.1, A.6 and A.7 can be said to be members of criminal conspiracy. Unless they were members of the conspiracy, they would not know about killing of the deceased. Hence, A.1, A.6 and A.7 are liable for the charge under Section 120B I.P.C. – Absence of any evidence cannot be said to the parties to the criminal conspiracy and therefore their conviction and sentence for the offence under Section 120B I.P.C. are liable to be set aside – Criminal Appeal is allowed.
K.C. Bhanu
1. All these appeals are filed under Sections 374(2) Cr.P.C. challenging the conviction and sentence recorded in the judgment dated 28.06.2004 in Sessions Case No.358 of 2000 on the file of the Additional Metropolitan Sessions Judg for trial of Jubilee Hills Car Bomb Blast Case-cum-Additional Family Court, at Hyderabad. A.1, A.5, A.9 and A.10 filed Criminal Appeal No.1589 of 2004; A.2, A.3, A.6 and A.7 filed Criminal Appeal No.1821 of 2004; and A.8 preferred Criminal Appeal No.1903 of 2004.
2. The prosecution case, in brief, may be stated as follows: -
The accused, which are activists of Indian Muslim Mohammadi Mujahiddin (IMMM), entered into a criminal conspiracy with their associates to do away with the life of the deceased. On 06.04.2000 at about 8.30 PM, the deceased was discussing business matters with P.W.30 who came from Coimbatore, in his jeweler shop in Siddiamber Bazar. At that time, an unidentified person entered the shop, fired at the deceased and ran away. On that the deceased came out of the counter and fell down. P.W.1, who is son of the deceased, and some salesmen were present at that time. The deceased was shifted to Osmania General Hospital in an auto-rickshaw where he was declared dead. At about 10.00 PM, P.W.1 gave Ex.P1-report in Afzalgunj police station to P.W.69-C.I. of Police. On that, he visited the scene of occurrence and found two empty cartridges. He also noticed a white colour carry bag in a corner of footpath near an electric pole and a tree to the south east of Mahalakshmi Jewelers shop. He also noticed a metallic G.I. pipe with wires connected to a plastic box. They were seized in the presence of P.W.63. He also prepared Ex.P69-observation report and Ex.P70-rough sketch. On 07.04.2000, he held inquest on the dead body of deceased and sent it for post-mortem examination. P.W.32-Assistant Professor, Forensic Medicine conducted autopsy. He found a firearm injury in front of right lower neck and opined that the death was due to firearm injury to the neck structures and left lung. Ex.P27 is the post-examination certificate.
The investigation was entrusted to C.C.S. Police. During investigation, the unidentified person who committed the crime was picked up as A.1. On 10.04.2000, P.W.74-C.I. of Police took up investigation. He verified investigation done by P.W.69. According to him, there was reliable information that the offence was committed by IMMM. He deployed City Task Force personnel to various vulnerable points by giving descriptive particulars furnished by the witnesses. On 13.04.2000, on credible information, he went to Chandrayanagutta crossroads along with officers and panchas. He arrested A.1 who gave his particulars and produced M.O.11-pistol with 7 live rounds of cartridges. All the 7 cartridges are marked as M.O.12. M.O.1-cell phone was also seized. M.O.48 is the charger. Exs.P58 to P61-E-mail prints were also seized. A.1 produced M.O.47-rexine bag in which M.Os. 1(cell phone), 50(cash of Rs.5,000/-), 49 (spectacle), and Exs.P58 to 62 were found. They were seized under Exs.P57 in the presence of P.W.57 and another.
A.1 showed A.2 from whom 8 articles were seized under Ex.P63 pursuant to his statement. The articles were found in M.O.51-suit case. A.3 was traced at the instance of A.2. He led police and panchas to a graveyard near D.M.R.L. Company and dug out M.O.53-plastic bag, which contained 6 articles (M.Os. 28 to 31 and 2 to 5). They were seized under Ex.P65-seizure report. P.W.74 took fingerprints of A.1 to A.3. On 16.04.2000, A.5 was arrested in the presence of P.W.73 and another. He produced M.O.54-bag, which contained 1 to 11 articles. They were seized under Ex.P113-panchanama. A.5 showed A.6 who was found in Chudi Bazar with a scooter. A polythene gunny bag was seized, which was found on footrest of the scooter. 18 articles were found in the bag. They were seized under Ex.P121-panchanama. A.6 showed A.8 and A.9. A.8 produced M.O.58-bag, which contained 7 art
