Andhra HC (Pre-Telangana)
Sk. Abdul Kareem And Ors. vs State Of Andhra Pradesh on 11 July, 1996
Equivalent citations: 1996(2)ALD(CRI)887, 1996(2)ALT(CRI)465, 1996CRILJ4173
JUDGMENT N.Y. Hanumanthappa, J.
1. This appeal is filed by the appellants/accused No. 1 to 9 in S.C. No. 403 of 1993 on the file of the learned Sessions Judge, Cuddapah, who by his judgment and order dated 15-7-1995 convicted the appellants/accused Nos. 1 to 9 for the offences punishable under Section 148 IPC and sentenced them to undergo Rigorous Imprisonment for two years each; and also convicted A.1 to A.4 for the offence punishable under Section 302 IPC and sentenced them to undergo imprisonment for life each; and also convicted A.5 to A.9 for the offence punishable under Section 302 read with S. 149 IPC and sentenced them to undergo imprisonment for life each; and also convicted A.8 and A.9 for the offence punishable under Section 324 IPC and sentenced them to suffer Rigorous Imprisonment for tow years each; and lastly convicted A.1 to A.7 for the offence punishable under Section 324 read with S. 149 IPC and sentenced them to undergo Rigorous Imprisonment for two years each and also directed that all the sentenced passed against the accused shall run concurrently.
2. A few facts, which are necessary to dispose of this appeal, are as follows :
The deceased - Shaik Inayathulla and the material witnesses are residents of Trunk Road, Rayachoti, Cuddapah district. The deceased was the seventh son to his parents. They are all about 12 brothers and one sister. The deceased was not married. Except the eldest brothers P.W. 5 - S. K. Habibullah, all the brothers are living together. There is enemity between A.1 to A.3-Shaik Abdul Kareem @ Sabju, Shaik Saleem, Shaik Mazahar - and the deceased family. There are criminal cases pending against the deceased family. In the election one group supports Congress and another group supports Telugu Desham. A.4 to A.9 belong to the group of A.1 to A.3. The father of A.1 to A.3 resides at Cuddapah. A.1 to A.3 will be visiting Rayachoty often.
3. On 17-10-1991 at about 9.00 p.m., from four roads junction, P.W. 1 - S. K. Noorullah and the deceased were going to their house, which is at a distance of 100 yards from four roads junction. When they came near the house of Alli Sahib, all the accused armed with Knives stated that they are going to kill. The deceased and P.W. 1, to save themselves, ran towards house, but all the accused Nos. 1 to 9 surrounded P.W. 1 and the deceased in front of their house. A. 8 hacked P.W. 1 with a knife on his right wrist; A. 9 beat P.W. 1 with a knife on his right finger. When the deceased questioned the accused for beating P.W. 1, all the accused lifted and carried the deceased to the road. P.W. 1 raised cries to save them. On hearing cries, P.W. 2 - S. K. Habizullah, P.W. 3 - Shaik Athavullah came to the road. When the accused put the deceased on the road, the deceased fell down on the road with his face upwards. A. 1, A. 3 and A. 4 stabbed the deceased qith knives on the chest. A. 5 and A. 7 caught hold of the legs of the deceased; A. 6 caught hold of the hands of the deceased; A. 2 cut the throat of the deceased with a knife. When they raised cries all the accused ran away. Afterwards P.Ws. 1 and 2 went to the Police Station and preferred a written complaint at 10-30 p.m., which is marked as Ex. P.1, P.W. 9-K. Purushotham, Circle Inspector of Police registered the complaint - Ex. P.1 as First Information Report in Crime No. 121 of 1991 under Sections 147, 148, 324, 302 read with 149 IPC. Ex. P.5 is the original Fist Information Report. He sent the First Information Report to all the concerned. He examined P.W. 1 and recorded his statement. He also seized the blood stained lungi - M.O. 1 from P.W. 1. He sent P.W. 1 to the Government Hospital Rayachoty. He left the police station and reached the scene of offence at 1.30 a.m. He examined P.Ws. 2, 3 and 4 and recorded their statements. He posted the guard at the scene of offence. As it was late in the night, he did not hold inquest, but in the morning he procured the panchayatdars - P.Ws. 6 and 7 - Kasabu Imamuddin, Kuppam Suryanarayanamoorthy - and held inquest. He found that the body was lying at a distance of 45 feet from the house of the deceased and at a distance of 120 feet from the house of A.1 to A.3 and 600 feet from the four road junction. The dead body was near the house of P.W. 5 - S. K. Habibullah. He examined P.W. 5 after the inquest. During inquest, he seized M.Os. 6, 7 and 8. The clothes on the dead body are M.Os. 2 to 5. The inquest report is Ex. P.2. The dead body was sent to the Government Hospital and then he prepared a rough sketch of the scene of offence. The doctor - C. H. Vasanth (P.W. 8), Civil Assistant Surgeon, Government Hospital, Rayachoti examined P.W. 1 at 1-45 A.M., and found three incised injuries - on right ring finger, right wrist and right forearm - and all are simple in nature. He issued wound certificate at Ex. P.3. He also conducted post-mortem on the dead body of the deceased at 10.30 a.m. and found eleven external injuries. He found injuries No. 5 to 11 are simple in nature and issued Ex. P.4 - post-mortem certificate. P.W. 9 sent the property to the Court with a letter of request - Ex. P.8 and letter of advice - Ex. P.9 and the Chemical Examiner's report is Ex. P.10. On 10-2-1992 he filed charge sheet.
4. As the offences alleged against the appellants/accused are exclusively triable by the Court of Sessions, the learned Judicial magistrate of Ist Class, Rayachoty, who registered the case as P.R.C. No. 2 of 1992, committed the same to the Court of Sessions at Cuddapah. The learned Sessions Judge, Cuddapah, after receiving the papers took cognizance of the offence and registered it as S.C. No. 403 of 1993.
5. After furnishing copies of documents to the accused and examining the papers, learned Sessions Judge framed the following charges :
Firstly :- That you A. 1 to A. 9 on or about 17th day of October, 1991 in Rayachoty, were a member of unlawful assembly and did in prosecution of the common object of such assembly namely in committing the murder of Shaik Inayathullah and causing hurt to Shaik Noorullah, commit the offence of rioting and at that time were armed with deadly weapons namely knives and thereby committed an offence punishable under Section 148 of the Indian Penal Code and within my cognizance;
Secondly :- That you A. 1 to A. 4 on or about 17th day of October, 1991 in Rayachoty, did commit murder by intentionally or knowingly causing the death of shaik Inayathullah and thereby committed an offence punishable under Section 302 of the Indian Penal Code and within my cognizance.
Thirdly :- That you A. 5 to A. 9 on or about 17th day of October, 1991 at Rayachoty, were a member of an unlawful assembly and in prosecution of the common object of such unlawful assembly A. 1 to A. 4 who are members of such unlawful assembly committed the murder of Shaik Inayathullah and you are thereby, under Section 149 of the Indian Penal Code, guilty of causing the said offence, an offence punishable under Section 302 of the Indian Penal Code and within my cognizance :
Fourthly :- That you A. 8 and A. 9 on or about 17th day of October, 1991 at Rayachoty, caused hurt to Shaik Noorulla by means of a knife which is an instrument of stabbing and thereby committed an offence punishable under Section 324 of the Indian Penal Code and within my cognizance;
Fifthly :- That you A. 1 to A. 7 on or about 17th day of October, 1991 at Rayachoty, were a member of an unlawful assembly and in prosecution of the common object of such unlawful assembly A. 8 and A. 9 who are members of such unlawful assembly caused hurt to Shaik Noorulla with knives and you are thereby under Section 149 of the Indian Penal Code guilty of causing the said offence, an offence punishable under Section 324 of the Indian Penal Code and within my cognizance.
And I hereby direct that you be tried before me on the aforesaid charges".
6. The charges were read over and explained to the accused, but they pleaded not guilty and claim to be tried. Then evidence was adduced. On the prosecution side, it examined nine witnesses as P.Ws. 1 to 9 and got marked ten documents, Exs. P.1 to P.10; and on defence side, it examined three witnesses as D.Ws. 1 to 3 and M.Os. 1 to 8 were also got marked. After the closure of the evidence, the trial Court recorded the statement of the accused under Section 313 Cr.P.C.
7. P.W. 1 is the younger brother of the deceased; P.W. 2 is the another brother of the deceased; P.W. 3 is the junior paternal uncle of the deceased and also P. Ws. 1 and 2; P.W. 4 is the uncle of the deceased; P.W. 5 is the eldest brother of the deceased; P.W. 6 and P.W. 7 are the panch witnesses for the inquest; P.W. 8 is the Doctor, who examined P.W. 1 and issued wound certificate and also held autopsy and issued wound post-mortem certificate; P.W. 9 is the Circle Inspector of Police, who conducted the investigation and laid charge sheet. Ex. P.1 is the complaint lodged by P.W. 1 prepared by P.W. 2. Ex. P.2 is the inquest report; Ex. P.3 is the wound certificate of P.W. 1; Ex. P.4 is the post-mortem certificate of the deceased; Ex. P.5 is the First Information Report; Ex. P.6 is the Police proceeding; Ex. P.7 is the rough sketch of the scene of offence; Ex. P.8 is the letter of request; Ex. P.9 is the letter of advice; Ex. P.10 is the F.S.L Report. On the defence side, the witnesses examined were Dr. K. Bhaskar Ready - D.W. 1, Assistant Professor, Forensic Medicine, S.V. Medical College, Tirupathi; who spoke that A. 2 was in patient in his hospital at Nimmanapalli, when he was working there; D.W. 2 - Syed Shariff Ahammad, principal. Government Junior College for Boys, Kadiri; and D.W. 3 - S. Yusuf Saheb, U.D.C., Government High School, Kadiri spoke that on the date of the incident, A. 1 was the Librarian in the college and was working in the college; Exs. D.1 to D.7 are the portions of the statements of witnesses - P.Ws. 1, 2, 3, 4, and 5 respectively recorded under Section 161 Cr.P.C. Ex. D.8 is the entry of admission, treatment and discharge pertaining to A. 2; Ex. D. 9 is the office order dated 12-10-1991 relating to the Librarian; Ex. D.10 is the certificate issued by D.W. 1.
8. The trial Court, after considering the entire evidence found that the death of the deceased was not natural, but it was a murder, that all these accused were responsible for causing the death of the deceased. Accordingly, it convicted and sentenced them for various offences and periods mentioned above. It accepted the correctness of Ex. P.1, though there is some discrepancy as to the signature of P.W. 1 found in Ex. P.1 and other papers by giving it's explanation in para 51 of its judgment. It also observed that there is no inconsistency or artificiality in the statements of witnesses and on the other hand the evidence given by the witnesses is quite natural, consistent, acceptable and trustworthy. According to the trial Court, Ex. P.1 is not a fabricated one and it is not prepared out of due deliberations. It found that the execution of Ex. P.1 need not be suspected merely because it was not lodged by P. W.2, the brother of both P. W.1 and the deceased, who is an educated and who in fact prepared the complaint to the dictation of P. W.1, but got the same signed by P. W.1 and presented before the Police. The injuries found on the dead body of the deceased corresponds with the evidences given by the eye witnesses, including P. W.1, the injured eye witness. Further the same is agreeing with the injuries found in post-mortem report issued by P. W.8, the Doctor, who conducted the autopsy. Regarding the alibi pleaded, the trial Court refused to accept it. Having reached to the conclusion that the death of the deceased was a murder, it convicted the accused as mentioned above and sentenced them to undergo imprisonment for different periods.
9. Aggrieved by the said conviction and sentence, this appeal is filed. Sri C. Padmanabha Reddy, Advocate representing Mr. M. Sreeramulu Reddy, learned counsel for the appellants/accused attacked the judgment of the trial Court on several grounds. The main, among other, grounds are (1) the trial Court committed a mistake in accepting Ex. P.1 as a genuine one without noticing the same as a false one and fabricated after due deliberations with a view to wreck personal vengeance against the accused. According to him Ex. P.1 is a false one. Earlier to Ex. P.1 another complaint must have been lodged, but the same is suppressed and Ex. P.1 is brought into existence, otherwise no reason for P.W. 2 to write a complaint in Telugu and ask his elder brother to sign it and present it before the police. (2) The signature of P.W. 1 found on Ex. P.1 differs from the signature signed on other documents made available before the Court. When Ex. P.1 is difficult to believe, it amounts that there is falsification in First Information Report that the real complaint has been suppressed and the same shall not be accepted as a correct one. According to him, the evidence of the witnesses P.Ws. 1 to 5 should not have been accepted by the trial Court as they are relatives of the deceased and that they are partisan, interested in implicating the accused. A close scrutiny of the evidence of these witnesses will clearly establish that they have repeated parrot like what is stated in Ex. P.1. Further, the incident spoken to by P.W. 1 and stated in Ex. P.1 and before the Court to the effect that himself and the deceased were attacked by the accused simultaneously, when such be the case, he would not have witnessed the incident of attack on the deceased. According to Sri Padmanabha Reddy, learned counsel that the theory of the prosecution improbabilises for a few more reasons viz., the trial Court has not considered the entire evidence particularly when P.W. 1 spoke that the lungi seized, according to him, after the incident, which contain blood stains, is not produced, but M.O. 1 produced, witness says that does not belong to him. There is much difference in the oral evidence and the evidence given by the doctor. According to the doctor, he found eleven injuries on the dead body of the deceased, that except injury numbers 1, 2 and 11, all other injuries are on the chest portion, Injury No. 2 is a cut injury on the neck. Injuries 3 and 4 are alone fatal as per the opinion of the doctor. But the injuries inflicted on the chest, according to the prosecution witnesses, were by all the three accused viz., A. 1, A. 3 and A. 4. There is no explanation that which accused caused these injuries, particularly one out of the two fatal injuries. The trial Court committed a mistake in not accepting alibi pleaded for A. 2, who in fact was an inpatient in the hospital situated at Nimmanapally headed by D. W. 1, who spoke about A. 2's admission and taking treatment in the hospital. Likewise, the trial Court committed mistake in not accepting the alibi pleaded by A. 1, who is a librarian in the Government Junior College, Kadiri and this accused was working on that day in the College as spoken to by D. W. 2, Principal, government Junior College for Boys, Kadiri and D. W. 3, U.D.C. He lastly contended that injuries found on P. W.1 are superficial in nature. Thus arguing, he pleaded that the conviction and sentence ordered by the trial Court is a clear case of improper appreciation of evidence given before the trial Court and ignoring the settled legal position on several points involved in the case. As such, the conviction and sentence order against the appellants/accused deserves to be set aside and appellants/accused be set at liberty forthwith.
10. Sri Kailashnath Reedy, learned Additional Public Prosecutor contended that this is one of the cases, where the Court took lot of pain in analysing the evidence systematically and reached the correct conclusion. According to him, the prosecution proved the motive behind the family of the accused Nos. 1 to 3 and the deceased viz., political differences. Merely because Ex. P.1 was prepared by P.W. 2 and signed by P.W. 1; and the signature does not tally with the signatures found on other papers, is not sufficient to hold that it is a fabricated one. There is no suppression of the original complaint and in the Court a false one is produced. There is no parrot like repetition in the statements of witnesses. Whatever they stated, there was consistency in their statements as to the happening of the incident. Mere relationship will not discredit their version unless it is tainted with any malice, artificiality or not corroborated. On the other hand, the entire evidence of the eye-witnesses run on the same lines. The contention that P.W. 1 would not have seen the incident because himself and the deceased were attacked simultaneously by the accused, is incorrect. He has clearly stated in the statement before the Court that he was attacked when he tired to remove the deceased. Thus, there is neither confusion nor any difficulty for P.W. 1 to witness the incident. The injuries found on the body of the deceased as told by the doctor are quite fatal in nature, particularly injury Nos. 2, 3 and 4 caused around the chest. It has come in the evidence that A. 1, A. 3 and A. 4 attacked the deceased on the chest, that when injuries 3 and 4 are found fatal, the other injuries are also incised wounds that there is no confusion to connect all the accused to the attack on the chest. As far as attack of A. 2 on the deceased is concerned, that is independent one viz., cut the throat of the deceased when he had fallen on the ground, whose hands were held by A. 5 and A. 7 and legs were held by A. 6 no doubt need to be entertained as to the participation of A. 1 to A. 4 in committing heinous crime on the deceased concerned. As far as the circumstance of P.W. 1 saying that lungi seized and showed to him in the Court does not belong to him is quit in-consequential in nature. P.W. 1 also spoke about the attack on him by other accused and the injuries found on the dead body were identified at the time of inquest, and the same are corresponding in the post-mortem report. Regarding alibi pleaded on behalf of A. 1 and A. 2, it was rightly rejected by the trial Court, since it is a fool-proof case and the conviction and sentence ordered by the trial Court is a just one and no interference is warranted.
11. Since this Court being the appellate Court having jurisdiction to re-appreciate the evidence and to take its own view, if possible, keeping in mind the contentions raised by both the sides, we went through the evidence and the judgment of the trial Court. As far as Ex. P.1 is concerned, in spite of attack on the said exhibit by Sri Padmanabha Reddy, learned counsel by giving various circumstances, which improbabilises the genuineness of Ex. P.1, after going through the evidence, verifying the signatures of P.W. 1 found on Ex. P.1 and other papers, situation under which P.Ws. 1 and 2 are placed and their status in the society, capacity to understand the things, we hold that Ex. P.1 is not a fabricated one, though it creates some doubt at first instance, but if other circumstances are taken into account, Ex. P.1 is a genuine one. This has been rightly considered by the trial Court in it's judgment at page 51. Regarding the statement of witnesses as to how far they are trustworthy, we went through in detail the statement of all the witnesses. All the witnesses are eye witnesses. No doubt they are related, but they are eye-witnesses and they deposed before the Court what actually they saw. The contention that their statements are almost replica to the contents of Ex. P.1. As such, the same need not be accepted on the ground that these witnesses, in the absence of tutoring, would not have spoken like parrot. We are unable to accept this contention.
12. As far as the attack is concerned, the trial Court considered the entire evidence. The injuries found on the dead body, as told by the Doctor before the Court and also referring the same in the post-mortem report, are proved as correct. Regarding motive part, it has come in the evidence of the witnesses that there was political rivalry. Even that motive, as suggested by Mr. Padmanabha Reddy, Advocate, is ignored, still one can believe the happening of incident as told by the prosecution witnesses to a greater extent. Attack on the deceased spoken to by the eye-witnesses, particularly P.W. 1, the injured eye-witness, injuries found on the chest of the deceased are corresponding with the post-mortem report. It has come in the evidence of the Doctor, that among eleven injuries, injuries 5 to 11 are simple; injuries 1 to 4 are fatal, among them, injuries 2, 3 and 4 are more fatal. It has come in the evidence, as far as the attack on chest is concerned, the accused Nos. 1, 3 and 4 attacked on the chest with a knife; whereas A. 2 cut the throat of the deceased. Injury No. 2 viz, the cut injury on the throat is concerned, it can easily be attributed to A. 2 that is what the trial Court did. Regarding injury Nos. 3 and 4 are concerned, there is some doubt as to whose attack is responsible for causing these two injuries. Participation of A. 2 and causing a cut injury on the throat and participation of A. 3 and A. 4 and attacking the deceased on the chest is concerned, it is fully established from the evidence given. No doubt, A. 2 tried to putforth the alibi by placing the evidence of a Doctor and his admission to the hospital, but the same was disbelieved by the trial court. As far as the attack on the chest is concerned, the evidence is that A. 1, A. 3 and A. 4 are responsible. Again A.1 pleaded alibi. To support it, he examined D.Ws. 2 and 3, the Principal of the College and UDC where the accused No. 1 was working as a Librarian. They are officials of the institution maintained by the Government. They spoke to the truth by making reference to the entries in the records, particularly Ex. D. 9, but the trial Court rejected the plea of alibi of A. 2. A strict and impartial scrutiny of the evidence of D. Ws. 2 and 3, on the point of alibi, the alibi pleaded by A. 1 deserves to be accepted.
13. Having reached the conclusion that injuries found on the chest of the deceased and also concluded that if alibi pleaded by A. 1 is accepted, participation of A. 1 in the commission of offence requires to be excluded and the accused who remained for causing fatal injuries are only A. 2, A. 3 and A. 4, A. 2 stabbed causing a cut injuries on the neck of the deceased and A.3 and A.4 attacked on the chest of the deceased.
14. As far as injury on P.W. 1 is concerned, it is clear from his own evidence that attack on him was made only by A. 8 and A. 9. Injuries as found in the wound certificate are simple in nature. Regarding participation of other accused in any way is not established by the prosecution. As such, A. 1, whose participation is not established, his conviction ordered by the trial Court deserves to be set aside. Likewise conviction of A. 5, A. 6 and A. 7 also deserves to be set aside. No doubt, the prosecution failed to prove the role attributed against A. 5 and A. 7 When the deceased received Knife injuries on the chest inflicted upon by A. 1, A. 3, A. 4, he fell down, his hands were caught hold by A. 6 and legs were caught hold by A. 5 and A. 7, but after receiving such serious injuries, all fatal injuries on the chest and when deceased fell on the ground, the question of again raising and running away will not be there. Thus the role of A. 5, A. 6, and A. 7 catching hold of hands and legs of the deceased is difficult to believe. As far as the attack on P.W. 1 is concerned, his own evidence shows that only A. 8, and A. 9 attacked him and caused simple injuries and also corroborates as told by the Doctor in the wound certificate Ex. P.4 Thus, A. 8 and A. 9 are responsible for causing hurt on P.W. 1.
15. Coming to the nature of offence committed, since two injuries 3 and 4 caused on the chest of the deceased, which are found fatal, but still there is doubt, who is responsible for causing such fatal injuries in the absence of convincing and acceptable evidence.
16. Regarding the role of accused No. 2 is concerned, it is a clear case of murder because he caused a cut injury on the throat of the deceased. Hence he is liable to be convicted for the offence punishable under Section 302, IPC.
17. It can be safely said that the acts of A. 3 and A. 4 amounts to culpable homicide not amounting to murder and thus they are liable for conviction for the offence punishable under Section 304, Part I, IPC : and the accused Nos. 8 and 9 are liable to be convicted for the offence punishable under Section 324, IPC.
18. Accordingly this appeal is allowed in part and the convictions and sentences ordered against the accused by the trial court in S.C. No. 403 of 1993 on the file of the learned Session Judge, Cuddapah are modified and in its place now it is ordered that A. 2 is convicted for the offence punishable under Section 302, IPC and sentenced him to undergo imprisonment for life : whereas A. 3 and A. 4 are convicted for an offence punishable under Section 304 Part I, IPC and sentenced them to undergo imprisonment for seven (7) year each; and A. 8 and A. 9 are convicted for the offence punishable under Section 324, IPC causing hurt on P.W. 1 and sentenced them to undergo imprisonment for six (6) moths each. However, A.8 and A.9 given the benefit of the provisions under Section 428, Cr.P.C. A. 1, A. 5 and A. 7 are acquitted of all the charges levelled against them and they shall be set at liberty forthwith, if they are still in jail and if they are not required in any other case.
19. Appeal partly allowed.