SHAIK BABA Vs. STATE

JUDGEMENT

(1.) (Per Bilal Nazki,J.) This is an appeal filed by the accused against the conviction and sentence in S.C. No. 193/93. He was tried for an offence under Section 302 IPC, convicted and sentenced to life imprisonment. This case is otherwise an unfortunate commentary on our system where the accused was sent to jail at the time of his arrest after registration of the case. The charge-sheet was filed in the year 1992. The trial was completed within a period of 2 years and the judgment by the learned Sessions Judge was pronounced on 18th July, 1995. Since the appellant was in custody all along and might have been a poor man as well, he did not file the appeal but sent the appeal through jail after five years of conviction. Delay was condoned by this Court by an order dated 20-11-2000 and we are taking up the appeal on a date when the appellant has been in jail for almost nine years.

(2.) The prosecution story was that, on 16th March, 1993 at about 10.30 p.m. while the witnesses P.Ws. 1 to 4 along with two others went to a hotel near the Railway station Nizamabad and were having their meals in the said hotel, the accused came there and demanded from the owner of the hotel some money. The owner was sitting on the counter of the hotel. The accused threatened the owner of the hotel and demanded money. At that time the deceased stared at the accused and the accused got agitated on this and caught hold of the collar of the deceased. P.Ws. 1 to 4 tried to separate them but in the process the accused stabbed the deceased in the upper portion of the stomach and he fell down. This is the statement with regard to the occurrence which has been stated by all the eye-witnesses and all these eye-witnesses are brothers of the deceased. There was no enmity between the accused and the deceased and the deceased had seen the accused for the first time. This is what has been stated by the witnesses also. The witnesses also did not know the accused prior to the date of occurrence. They have been forthright in saying that they did not know his name but after the incident they came to know about the name of the accused. After they filed the report with the police the police was able to apprehend the accused. We have also seen from the statement of P. W. 1 that the accused gave only one blow to the deceased, although he could have given many blows he did not give even a second blow. Since there was no enmity between the accused and the deceased and whatever happened had happened at the spur of the moment we do believe that the accused did not have any intention or premeditation to kill the deceased. Therefore, conviction under Section 302 IPC cannot be sustained. However, the accused should have been convicted under Section 304 Part II of IPC.

(3.) Therefore, while allowing this appeal we convict the appellant under Section 304 Part II of IPC and sentence him imprisonment to a term already undergone because we have been told that he has been in custody from 29th March, 1993.