Shaikh Karimullah @ Babu and Ors. Vs. State of A.P.
EmailAppeal: Criminal Appeal No. 223 of 2009
[Arising out of SLP (Crl.) No. 6657 of 2007]
[From the final Judgment and Order dated 11.10.2006 of the High Court of Judicature, Andhra Pradesh at Hyderabad in Criminal Appeal No. 2286 of 2004]
[Arising out of SLP (Crl.) No. 6657 of 2007]
[From the final Judgment and Order dated 11.10.2006 of the High Court of Judicature, Andhra Pradesh at Hyderabad in Criminal Appeal No. 2286 of 2004]
Petitioner: Shaikh Karimullah @ Babu and Ors.
Respondent: State of A.P.
Apeal: Criminal Appeal No. 223 of 2009
[Arising out of SLP (Crl.) No. 6657 of 2007]
[From the final Judgment and Order dated 11.10.2006 of the High Court of Judicature, Andhra Pradesh at Hyderabad in Criminal Appeal No. 2286 of 2004]
[Arising out of SLP (Crl.) No. 6657 of 2007]
[From the final Judgment and Order dated 11.10.2006 of the High Court of Judicature, Andhra Pradesh at Hyderabad in Criminal Appeal No. 2286 of 2004]
Judges: Dr. Arijit Pasayat & Dr. Mukundakam Sharma, JJ.
Date of Judgment: Feb 06, 2009
Appearances:
Mr. Chanchal Kumar Ganguli, Advocate (SCLSC), for the Appellants.
Mr. I. Venkatanarayana, Senior Advocate, Mrs. D. Bharathi Reddy, Ms. Altaf Fatima and Mr. V. Prabhakar Rao, Advocates with him for the Respondent.
Mr. I. Venkatanarayana, Senior Advocate, Mrs. D. Bharathi Reddy, Ms. Altaf Fatima and Mr. V. Prabhakar Rao, Advocates with him for the Respondent.
Head Note:
Criminal Laws/Evidence
Penal Code, 1860
Sections 302, 148, 324, 325 – Murder – Accused coming with stick and iron rod and enquiring about ‘K’ – On asking them to behave properly all accused started beating ‘B’ with stick and iron rod – On intervention accused attacking PWs also – Trial Court acquitting A1 to A5 under Section 148 but sentencing A1 to A3 under Section 302, A2 to A5 found not guilty under Section 324 and A4 and A5 acquitted of all charges – High Court dismissing appeal. Held the records clearly show that no charge was framed in terms of Section 34 against appellant. PW-1 stated that the appellant assaulted the deceased with a stick, the other eye witnesses stated that the appellant had given fist blow. Considering the evidence of witnesses as brought on record the appropriate conviction would be in terms of Section 325 IPC and not Section 302 IPC. Custodial sentence of three years ordered. (Para 7)
Penal Code, 1860
Sections 302, 148, 324, 325 – Murder – Accused coming with stick and iron rod and enquiring about ‘K’ – On asking them to behave properly all accused started beating ‘B’ with stick and iron rod – On intervention accused attacking PWs also – Trial Court acquitting A1 to A5 under Section 148 but sentencing A1 to A3 under Section 302, A2 to A5 found not guilty under Section 324 and A4 and A5 acquitted of all charges – High Court dismissing appeal. Held the records clearly show that no charge was framed in terms of Section 34 against appellant. PW-1 stated that the appellant assaulted the deceased with a stick, the other eye witnesses stated that the appellant had given fist blow. Considering the evidence of witnesses as brought on record the appropriate conviction would be in terms of Section 325 IPC and not Section 302 IPC. Custodial sentence of three years ordered. (Para 7)
JUDGEMENT:
Dr. Arijit Pasayat, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a Division Bench of the Andhra Pradesh High Court at Hyderabad dismissing the appeal filed by the appellants and two others. The trial Court by its judgment dated 9.9.2004 acquitted A1 to A5 for the offence punishable under Section 148 of the Indian Penal Code, 1860 (in short the ‘IPC’). However A-1 to A-3 were found guilty for the offence under Section 302 IPC and they were sentenced to suffer imprisonment for life and fine of Rs.1000 with default stipulation, while A-4 and A-5 were not found guilty on the second charge. A-2 to A-5 were also found not guilty for the offence under Section 324 IPC. A4 and A5 were acquitted of all the charges.
3. The present appeal is restricted to Shaik Ibraheem (A-3), as stated by learned counsel for the appellants.
4. Prosecution version in a nutshell is as follows:
4.1. B. Nagabhusan (hereinafter referred to as the ‘deceased’) was a kerosene dealer. A1 was having illicit intimacy with one Krupa and often used to come to the colony and make enquiries about her. On 14.1.2000 while P.Ws. 1, 3 to 6 and the deceased were performing Annadanam at Anjaneya Swamy Temple, A1 kicked the Shamiana and sat on a Mahalakshmamma tree. When the said act was objected by Dastagiri, as it was a holy tree, he threatened them and went away. On 31.3.2000 at about 7.30 p.m. while the deceased, PWs 1, 3 to 6 were performing Bajana at the Anjaneya Swamy temple, all the accused persons armed with sticks and iron rods went to the temple and enquired about Krupa. P.W.3 told them that it was not proper for them to behave as it was a residential colony; on which A1 to A5 pushed him towards the house of Bellamkonda Venkateshwarlu abusing him; so saying A1 beat the deceased on right side of the head with an iron rod, A2 beat him with stick on his forehead, A3 beat with a stick on his forehead just above left eye and then fisted on his face, A4 beat him with a stick on his nose and A5 on his back; then the deceased fell down unconscious. When P.Ws. 1, 3 to 6 tried to intervene, all the accused attacked them with sticks and stones. A1 threatened them at the point of knife and ran away. Thereafter, the deceased was taken to Chilakaluripet Town Police Station as the deceased was unconscious, P.W.1 gave a report – Exhibit P1. On the basis of the above report, P.W. 11, the then Sub-Inspector of Police registered the case in Cr. No. 193 of 2000 and issued FIR Exhibit P.10. He then sent the deceased and the injured i.e. P.Ws. 1, 3 and 5 to the Government Hospital for treatment, visited the scene of offence, conducted panchanama, draw rough sketch of the scene Exhibit P.11. At about 2 p.m., on receiving the death intimation altered the Section of law and issued altered FIR Exhibit P.13. Further investigation was taken over by PW10, the Circle Inspector of Police, who visited the Government General Hospital, Guntur; held inquest over the dead body in the presence of P.W.7, covered under Exhibit P3 and sent the dead body for postmortem examination. On 01.04.2000 P.W.9, the doctor conducted autopsy over the dead body of the deceased and issued postmortem report Exhibit P9 opining that the cause of death was due to head injury. A1 to A5 were arrested on 13.04.2000 by P.W.10 in presence of P.W.7 and as per the statements made by them M.Os. 4 to 8 were recovered under Exhibit P5 panchanama and after completion of investigation he laid the charge sheet for the offence under Sections 147, 148, 324, 302 read with Section 149 IPC.
4.2. On committal of the case, necessary charges were framed against the accused. All the accused persons pleaded not guilty and claimed for trial.
4.3. In order to prove the guilt of the accused, prosecution examined 11 witnesses-PWs 1 to 11, marked Exhibits P1 to P13 and exhibited M.Os. 1 to 8. On behalf of defence relevant portions of statements of P.Ws. 1, 4 and 6 under Section 161 of Code of Criminal Procedure were marked as Exhibits D1 to D5, but no oral evidence has been let in on their behalf. Trial Court, as noted above, recorded conviction. High Court did not interfere and by impugned judgment dismissed the appeal.
5. According to learned counsel for the appellants Section 34 could not have been pressed into service as there was no charge framed and findings recorded are contrary to the evidence, as all witnesses except PW1 has stated that the appellant had given a first blow. That being so, it is submitted that offence punishable under Section 302 is not made out.
6. According to learned counsel for the State the judgments of the trial Court and the High Court do not suffer from any infirmity.
7. The records clearly show that no charge was framed in terms of Section 34 so far as the appellant is concerned. This position is fairly conceded by learned counsel for the respondent. It is also accepted that except PW-1 who stated that the appellant assaulted the deceased with a stick, the other purported eye witnesses stated that the appellant had given fist blow. Considering the evidence of witnesses as brought on record the appropriate conviction would be in terms of Section 325 IPC and not Section 302 IPC. Custodial sentence of three years would meet the ends of justice.
8. The appeal is allowed to the aforesaid extent.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a Division Bench of the Andhra Pradesh High Court at Hyderabad dismissing the appeal filed by the appellants and two others. The trial Court by its judgment dated 9.9.2004 acquitted A1 to A5 for the offence punishable under Section 148 of the Indian Penal Code, 1860 (in short the ‘IPC’). However A-1 to A-3 were found guilty for the offence under Section 302 IPC and they were sentenced to suffer imprisonment for life and fine of Rs.1000 with default stipulation, while A-4 and A-5 were not found guilty on the second charge. A-2 to A-5 were also found not guilty for the offence under Section 324 IPC. A4 and A5 were acquitted of all the charges.
3. The present appeal is restricted to Shaik Ibraheem (A-3), as stated by learned counsel for the appellants.
4. Prosecution version in a nutshell is as follows:
4.1. B. Nagabhusan (hereinafter referred to as the ‘deceased’) was a kerosene dealer. A1 was having illicit intimacy with one Krupa and often used to come to the colony and make enquiries about her. On 14.1.2000 while P.Ws. 1, 3 to 6 and the deceased were performing Annadanam at Anjaneya Swamy Temple, A1 kicked the Shamiana and sat on a Mahalakshmamma tree. When the said act was objected by Dastagiri, as it was a holy tree, he threatened them and went away. On 31.3.2000 at about 7.30 p.m. while the deceased, PWs 1, 3 to 6 were performing Bajana at the Anjaneya Swamy temple, all the accused persons armed with sticks and iron rods went to the temple and enquired about Krupa. P.W.3 told them that it was not proper for them to behave as it was a residential colony; on which A1 to A5 pushed him towards the house of Bellamkonda Venkateshwarlu abusing him; so saying A1 beat the deceased on right side of the head with an iron rod, A2 beat him with stick on his forehead, A3 beat with a stick on his forehead just above left eye and then fisted on his face, A4 beat him with a stick on his nose and A5 on his back; then the deceased fell down unconscious. When P.Ws. 1, 3 to 6 tried to intervene, all the accused attacked them with sticks and stones. A1 threatened them at the point of knife and ran away. Thereafter, the deceased was taken to Chilakaluripet Town Police Station as the deceased was unconscious, P.W.1 gave a report – Exhibit P1. On the basis of the above report, P.W. 11, the then Sub-Inspector of Police registered the case in Cr. No. 193 of 2000 and issued FIR Exhibit P.10. He then sent the deceased and the injured i.e. P.Ws. 1, 3 and 5 to the Government Hospital for treatment, visited the scene of offence, conducted panchanama, draw rough sketch of the scene Exhibit P.11. At about 2 p.m., on receiving the death intimation altered the Section of law and issued altered FIR Exhibit P.13. Further investigation was taken over by PW10, the Circle Inspector of Police, who visited the Government General Hospital, Guntur; held inquest over the dead body in the presence of P.W.7, covered under Exhibit P3 and sent the dead body for postmortem examination. On 01.04.2000 P.W.9, the doctor conducted autopsy over the dead body of the deceased and issued postmortem report Exhibit P9 opining that the cause of death was due to head injury. A1 to A5 were arrested on 13.04.2000 by P.W.10 in presence of P.W.7 and as per the statements made by them M.Os. 4 to 8 were recovered under Exhibit P5 panchanama and after completion of investigation he laid the charge sheet for the offence under Sections 147, 148, 324, 302 read with Section 149 IPC.
4.2. On committal of the case, necessary charges were framed against the accused. All the accused persons pleaded not guilty and claimed for trial.
4.3. In order to prove the guilt of the accused, prosecution examined 11 witnesses-PWs 1 to 11, marked Exhibits P1 to P13 and exhibited M.Os. 1 to 8. On behalf of defence relevant portions of statements of P.Ws. 1, 4 and 6 under Section 161 of Code of Criminal Procedure were marked as Exhibits D1 to D5, but no oral evidence has been let in on their behalf. Trial Court, as noted above, recorded conviction. High Court did not interfere and by impugned judgment dismissed the appeal.
5. According to learned counsel for the appellants Section 34 could not have been pressed into service as there was no charge framed and findings recorded are contrary to the evidence, as all witnesses except PW1 has stated that the appellant had given a first blow. That being so, it is submitted that offence punishable under Section 302 is not made out.
6. According to learned counsel for the State the judgments of the trial Court and the High Court do not suffer from any infirmity.
7. The records clearly show that no charge was framed in terms of Section 34 so far as the appellant is concerned. This position is fairly conceded by learned counsel for the respondent. It is also accepted that except PW-1 who stated that the appellant assaulted the deceased with a stick, the other purported eye witnesses stated that the appellant had given fist blow. Considering the evidence of witnesses as brought on record the appropriate conviction would be in terms of Section 325 IPC and not Section 302 IPC. Custodial sentence of three years would meet the ends of justice.
8. The appeal is allowed to the aforesaid extent.
