Andhra HC (Pre-Telangana)
The Public Prosecutor, High Court Of ... vs Ash Mohammad on 3 September, 1980
JUDGMENT S. Madhusudan Rao, J.
1. This is an appeal by the State against an order of acquittal of the sole accused in Sessions Case No. 46 of 1978 on the file of the Visakhapatnam Sessions Division. The accused was tried for an offence of murder and was acquitted of the same. The deceased in this case is one Kapoor Chand Shaoo, who was aged about 23 years by the time of his death. He was working as a gateman in the old Birla Company at Madhavadhara in Visakhapatnam. The accused is one Ash Mohammad, who is working as a Supervisor in the Technopack Company at Madhavadhara in Visakhapatnam. According to the prosecution, at about 8.30 or 9.00 p.m. on 20-3-1978 a group of persons were chasing the accused from Vengalarao colony saying "thief, thief" and the accused was running towards the Technopack Company, Madaka Narayana, a Rickshaw driver residing in the Vengalarao Colony (P.W. 1), Sistla Kanakarao, a Switch Board operator in the Hindustan Polymers, residing in Madhavadhara (P.W. 2) and Sabbavarapu Sanyasirao, a helper in the East-Coast Packing Company, Visakhapatnam, another resident of Vengalaraonagar (P.W. 3) were amongst the group of persons chasing the accused. By the time the accused reached the gate of the old Birla Company, the deceased came from inside the company premises and caught hold of the accused from behind. The accused turned towards the deceased and stabbed him with the knife on the left side of the chest and also on the left upper arm. On receipt of the injuries, the deceased fell down and the accused ran away into the Technopack company premises, P.Ws. 1, 2 and others who were chasing the accused ran away into the premises of Technopack company. When P.Ws. 1, 2 and others wanted to enter the company premises, the watchman P.W. 4 closed the gate and did not allow them to go inside. P.W. 1 told P.W. 4 that the accused stabbed the deceased and requested him to permit him (P.W. 1) and others to go and haul up the accused, but P.W. 4 advised P.Ws. 1 and 2 to go to the police station and give a report. P.Ws. 1 and 2 accordingly went to the 5th town police station and gave a report under Ex. P-l to the Sub-inspector of Police, P.W. 13. After re gistering the case, the Sub-Inspector examined P.Ws. 1 and 2 and proceeded to the scene of occurrence. The Inspector in charge, P.W. 14 took over the investigation at about 11.30 p.m. from P.W. 19. Immediately on taking over the investigation, he visited the Technopack Company and enquired about the accused, but could not get at him. He held an inquest over the dead body of the deceased from 8.00 a.m. to 11.00 a.m. on 21-3-1978. During the inquest he examined P.Ws. 1 to 4. After completion of the inquest he sent the dead body for post-mortem examination and later examined P.Ws. 5, 6 and others.
2. Dr. A. S. Prasad, P.W. 11, Assistant Professor of Forensic Medicine, Andhra Medical College, Vishakhapatnam conducted autopsy over the dead body of the deceased at about 2.30 p.m. on 21-3-1978, He found the following external injuries.
1. Oblique incised slab wound of 3 cm. long, 2 cm. wide and 20 cms. deep present on the left margin of the left chest in the line of front arm pit line 6 cms, to the left and above the left nipple. The direction of the track of the wound is inwards, downwards and towards the midline (towards the heart).
2. Transverse incised wound of 10 cms long x 6 cms. wide and 5 cms. deep present on the front and inner side of left upper arm 6 cm. below the arm pit. On dissection he found :
1. Oblique laceration of the intercostal muscle between the 3rd and 4th ribs on the left front of chest 8 cms. to the left on the sternal midline. The laceration is 6 cms. long, 2 cms. wide & 10 cms. deep (passing towards the heart).
2. Laceration on 2 x 1 cm. of the membrane covering the heart at the root.
3. Two lacerations of 2 cm., 1 cm. each opposite to each other present on the wall of the pulmonary artery of the heart at its origin from the heart.
4. Laceration 2 cm., 1 cm. of the aorta at its root corresponding to the injury in the pulmonary artery.
5. Laceration of front border of the left lung near the heart. The laceration is 3 x 1 cm. x 3 cms.
He opined that the deceased died of shock and haemorrhage due to perforating injuries of the great blood vessels of the heart.
3. After completion of the investigation P.W. 14 filed a charge-sheet against the accused.
4. The plea of the accused was one of complete denial. There was also alternative plea of right of private defence.
5. In support of its case, the prosecution has examined fourteen witnesses of whom P.Ws. 1 and 3 deposed as direct witnesses to the occurrense while P.W. 2 spoke to a circumstance which is as good as direct evidence. P.W. 4 is the watchman of the Technopack Company. P.W. 5 is a resident of Vengalarao Colony, who deposed that on the night of the occurrence while he was at his house he heard the cries of a mob saving "thief, thief" and that he then saw the accused running with a knife and being the person who was being chased by the mob. P.W. 6 is a resident of Madhavadhara, who deposed his having been beaten by four Hindi speaking persons at about. 8.00 p.m. on 20-3-1978 P.W. 7 is the village headman of Kaparada, who acted as one of the inquest dars over the dead body of the deceased. P.W. 8 is a draughtsman in the R & B Department, who prepared the plan Ex. P-2 of the scene of occurrence. P.W. 9 is the 3rd Addl. Munsif-Magistrate, Visakhapatnam, who held test identification parade in regard to the accused on 29-3-1978 for P.Ws. 1 and 2 and before whom both P.Ws. 1 and 3 correctly identified the accused as the person who was chased by the mob in the night of 20th March, 1978. P.W. 10 is the constable, who carried the dead body for post-mortem examination. P.W. 11 is the Assistant Professor of Forensic Medicine, who conducted post-mortem examination over the dead body of the deceased. P.W. 12 is a clerk in the Magistrate's court, who sent the material objects in this case to the chemical examiner for analysis. P.Ws. 13 and 14 are the Sub-Inspector of Police and Circle Inspector of Police respectively who investigated the case.
6. In support of his plea of innocence, the accused had examined three witnesses. D.W. 1 is an Office Assistant in the Technopack Company. He deposed that Kitabuddin (D.W. 2), who was an employee in the Technopack Company was absent from duty from the 21st March to the 24th March, 1978 (both days inclusive). He stated that one Showkathali, another employee of the company. (D.W. 3) was also absent from duty on the 21st and 22nd March, 1978. He identified the attendance register Ex. D-4 maintained in the Technopack Company and proved the entries Exs. D-5 and D-6 relating to the attendance of D.Ws. 2 and 3. D.Ws. 2 and 3 are Kitabuddin and Showkathali. Both of them deposed that they were taken by the police into their custody since the night of 20th March, 1978 and were kept in lock-up at Kancharapalem for some days.
7. On consideration of the evidence, the learned Sessions Judge, who tried the case doubted as to whether the accused was the person, who was chased by the mob that night and whether it was the accused, who was responsible for the fatal injuries of the deceased. Accordingly, he acquitted the accused of the charge of murder.
8. Sri G. Chandrasekhara Reddy, the learned Public Prosecutor, contends that - the appreciation of evidence by the learned Sessions Judge is wholly erroneous and that the direct evidence of P.Ws. 1 and 3 supported by the evidence of P.Ws, 2, 4 and 5 unmistakably establishes that the accused was the person who stabbed the deceased to death intentionally. Sri A. Krishna Murthy, the learned counsel for the accused-respondent, contends that the evidence of P.Ws. 1 and 3 does not clinch the issue against the accused, that it is lacunal in the sense that neither of them knows the name of the accused and that the accused was later taken into custody by the police and that the identification by P.Ws. 1 and 3 of the accused during the trial, though in accordance with an earlier test identification made before the police, cannot be made the basis of a safe conclusion that it is the accused and accused alone who is responsible for the fatal injuries of the deceased. Sri Krishna Murthy argues that the man who stabbed the deceased and who ran away may be quite different from the accused who was taken into custody by the police and was later being identified by P.Ws. 1 and 3. It is further submitted by the respondent's learned counsel that the evidence of P.Ws. 2, 4 and 5 is calculated to lend support to the main evidence of P.Ws. 1 and 3 and once the main evidence of P.Ws. 1 and 3 is eschewed from consideration, the evidence of these three witnesses will be of no avail to the prosecution. It is further argued by the respondent's learned counsel that, even accepting the entire evidence of the prosecution, it cannot be said that the accused is guilty of any offence in so far as the prosecution evidence itself reveals that the accused acted in self defence. Lastly, it is submitted on behalf of the respondent that the appreciation of evidence by the trial judge cannot be considered as perverse or so erroneous as to call for the interference of an appellate Court for reversing an order of acquittal.
9. This is an appeal against a judgment of acquittal and the scope of an appellate Court's powers while dealing with an appeal has been recently laid down by the Supreme Court in K. Gopal Reddy v. State of Andhra Pradesh, speaking for the Court, his Lordship Chinnappa Reddy, J., pointed out as follows :
"The principles are now well settled. At one time it was thought that an order of acquittal could be set aside for "substantial and compelling reasons" only and Courts used to launch on a search to discover those "substantial and compelling reasons". However, the 'formulae' of "substantial and compelling reasons", "good and sufficiently cogent reasons" and "strong reasons" and the search for them were abandoned as a result of the pronouncement of this Court in Sanwat Singh v. State of Rajasthan . In Sanwat Singh's case, this Court harked back to the principles enunciated by the Privy Council in Sheo Swarup v. Emperor (61 Ind App 398) : (AIR 1934 PC 227 (2)) : (36 Cri LJ 786) and reaffirmed those principles. After Sanwat Singh v. State of Rajasthan, this Court has "consiatently recognised the right of the Appellate Court to review the entire evidence and to come to its own conclusion, bearing in mind the considerations mentioned by the Privy Council in Sheo Swarup's case. Occasionally phrases like 'manifestly illegal', 'grossly unjust', have been used to describe the orders of acquittal which warrant interference. But such expressions have been used more, as flourishes of language, to emphasise the relunctance of the Appellate Court to interfere with an order of acquittal than to curtail the power of the Appellate Court to review the entire evidence and to come to its own conclusion."
Again in Salim Zia v. State of U.P. , their Lordships reviewed the entire case law on the subject and pointed out as follows :-
"The legal position emerging from these decisions may be summarised thus :
"1. The High Court in an appeal against an order of acquittal under Section 417 of the Cr.P.C. 1898 has full power to review at large the evidence on which the order of acquittal was found and to reach the conclusion that upon the evidence, the order of acquittal should be reversed.
2. The different phraseology used in the judgment of this Court such as -
(a) 'substantial and compelling reasons';
(b) 'good and sufficiently cogent reasons';
(c) 'strong reasons' are not intended to curtail or place any limitation on the undoubted power of an appellate Court in an appeal against acquittal to review the entire evidence and to come to its own conclusion as stated above but in doing so it should give proper consideration to such matters as, (i) the view of the trial Judge as to the credibility of the witnesses; (ii) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (iii) the right of the accused to the benefit of any real and reasonable doubt; and (iv) the slowness of an appellate Court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses."
Bearing the above principles in mind, we would like to review the evidence in this case to reach a conclusion of our own giving proper consideration to the four matters referred to in Salim Zia's case, .
10. The evidence of the doctor (P.W. 11) leaves no doubt whatever that the deceased received one stab wound on the left margin of the left chest and another stab wound on the front and inner side of the left upper arm below the arm-pit. His evidence also shows that the chest injury was 20 cm. deep and resulted in the laceration of the intercostal muscle on the left front of the chest and the laceration was 6 cm. in length, 2 cm. in width and 10 cm. deep passing towards the heart. There were further two lacerations on the wall of the pulmonary artery of the heart. There was another laceration on the aorta at its root. Still there was another laceration of the front border of the left lung near the heart. The chest injury is indisputably sufficient in the ordinary course of nature to cause death and it resulted in the instantaneous death of the deceased. The evidence of the Sub-Inspector (P.W. 13) shows that, even by 9.30 p.m., he received a telephonic message about the death of the deceased and that he immediately proceeded to the scene of occurrence where he found the dead body of the deceased lying on the road. He posted men to guard the dead body and to maintain law and order, it is clear that the deceased sustained the injuries a little while before 9.30 p.m. on 20-3-1978.
11. P.W. 1 is a resident of the locality where the occurrence took place. He stated that he took his night meals at about 8.30 p.m. and set in his rickshaw which was stationed in front of his house. According to him, while he was sitting, he heard the cries of a mob 'donga, donga'. He found the accused running from west to east and the mob chasing the accused. The Birla Company gate is in front of his house at a distance of about 10 feet from his house. The witness added that, while the accused was running away, the deceased, who is the gate-watchman of the Birla Company, caught hold of the banian of the accused from behind and that, thereupon, the accused turned towards the deceased and stabbed the deceased with the knife in his hand. The witness described the knife, which, according to him, had a blade of 10". On receipt of the blow, the deceased fell down and the accused ran away. He chased the accused and one Kanaka Rao (P.W. 2) also chased the accused, who escaped into the Technopack company premises. P.W. 3 is another resident of the locality. He is an employee of East Coast Packing Company at Visakhapatnam. He stated that, after night-meals, while he was going to the house of P.W. 1, he heard the cries of the mob 'donga, donga' and that he also saw the deceased coming out of the gate of the Birla Company and catching hold of the accused, who was running away. He added that, on being caught by the deceased, the accused stabbed the deceased with the knife in his hand on the left side of the chest.
We have carefully gone through the entire evidence of these two witnesses and we are unable to find any such infirmity or feature of unsavouriness as to discredit or even doubt their testimony, Neither of them has any motive against the accused nor is either of them in any way interested in the deceased. Both these witnesses have categorically stated that they did see the accused stabbing the deceased with a knife in the night a little after 8.30 p.m. and that on receipt of the knife blow, the deceased fell down. The learned Sessions Judge considered the evidence, of these two witnesses and observed that the evidence does not inspire any confidence in him in so far as P.W. 1 did not mention about the presence of P.W. 3 and P.W. 3 was not examined in the very night of the occurrence nor did P.W. 3 mention the details of the occurrence to anybody else until he was examined by the police. P.W. 3 was examined at the inquest which was held from 8 a.m. to 11 a.m. by the Inspector of Police (P.W. 14), though he was not examined that very night.
12. P.W. 2 is another very important witness. He is also a highly disinterested person and is a resident of the locality in which the occurrence took place. He stated that, at about 8.30 or 9 p.m., on 20-3-1978 after finishing his night meal, he was lying on a mat in front of his house and that at that time he heard people chasing the accused saying 'donga, donga'. He also ran along with those people. According to this witness, one person came from the Birla Company gate and caught hold of the accused. The accused thereupon pushed him away and ran away. That person fell down. The witness added that he was then at a distance of about 50 yards from the accused and the person who had fallen. He joined P.W. 1 at the Technopack Company and there he was present with P.W. 1 when P.W. 1 requested the gateman (P.W. 4) to permit them to go into the company premises saying that the person who ran into the premises stabbed the deceased. On being advised by the gateman (P.W. 4), not to enter the premises, but to give a report at the police station, P.Ws. 1 and 2 went to the police station where a report under Ex. P-1 was given by about 10 p.m. to the Sub-Inspector of Police (P.W. 13). The learned Sessions Judge did not act on the evidence of P.W, 2 on the ground that he took interest in chasing the accused even though no theft was committed in his house by the accused. The learned trial Judge observed that "the conduct of P.W. 2 in taking more interest in chasing the accused and going to the police station and giving the report, clearly shows that he has interest in somehow or the other and it is only known to P.W. 2, but it is not known to us." We are unable to understand how the conduct of P.W. 2 is extraordinary when several residents of a locality chased a person calling "thief, thief" and another person of that very locality joins the crowd of chasers and later goes to the police station where a report is given in connection with the stabbing of one of the members of the locality by the person, who was chased. In para 58 of his judgment, the learned trial Judge observed :
"The evidence that P.Ws. 1, 2 and 3 witnessed the accused stabbing the deceased does not inspire the confidence of this Court on a close scrutiny of their evidence. Their evidence, at best may throw a doubt that the accused is the person that might have committed the offence. The accused being a northern Indian, the possibility of his running away when he was chased by the locals cannot be ruled out. But it does not mean that the Court must be satisfied merely about the complicity of the accused. According to the system of jurisprudence, which we follow, conviction cannot based on suspicion nor on the conscience and the Court being morally satisfied about the complicity of an accused person. He can be convicted and sentenced only if the prosecution proves its case beyond reasonable doubt."
There can be no exception to the proposition that an accused should not be convicted on mere suspicion or on moral conviction and should always be given the benefit of doubt; but the doubt the benefit of which the accused would be entitled, should be reasonable, cogent, coherent and not fanciful. In K.Gopal Reddy's case, , his Lordship, Chinnappa Reddy, J., observed :
"Where the trial Court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice lest the administration of justice be brought to ridicule."
PW 4 has clearly stated that, in the night of 20-3-1980, he was P.Ws. 1 and 2 chasing the accused and that, while being chased, the accused entered into the Technopack Company premises and that, when P.Ws. 1 and 2 asked him to allow them to go inside, he told them that the accused had a large following of 20 persons and that it would not be desirable to go inside. P.W. 4 further deposed that P.Ws. 1 told him then that the accused stabbed the Birla Company watchman and that, therefore, only he and others would like to catch the accused. He advised P.Ws. 1, 2 and others to go to the police station and give a report. Nothing had been elicited nor even suggested as to why the evidence of this witness should not be believed. The witness is in no way interested in the deceased. He has nothing to do with the prosecution. He was the best person to speak about the person who entered into the Technopack Company premises that night, as he was the gateman who closed the gate against the crowd of persons who chases the man who stabbed the deceased and run away into the premises of the Technopack Company. He was examined at the inquest. The Sub-Inspector of Police (P.W. 13) who went to the scene of occurrence in the very night of the occurrence, stated in his cross-examination :
"After Murthyraju took up investigation we went to the Technopack Company and we came to know from P.W. 4 that the accused was the person responsible for the murder."
It was clearly mentioned in the earliest report, Ex. P-1, that the gateman closed the gate after the assailant to the deceased ran into the premises.
13. The next witness is P.W. 5. This witness was no doubt examined after the inquest; but that circumstance by itself does not detract from the substantial value of the testimony given by him, when his evidence is otherwise standing all the general tests of reliability which can be applied to the evidence of a witness. He is disinterested. He has no axe to grind against the accused. He is a person living in the vicinity of the scene of the occurrence and his evidence is in substantial accord with the evidence of the other disinterested witness like P.Ws. 1 to 4. He has categorically stated that, in the night of 20-3-1978, he saw the accused running with a knife, that the accused was being chased by a group of persons who were saying 'donga, donga'. Bearing in mind the fact that the accused was acquitted by the learned trial Judge, who had seen and heard the witnesses and that there is a presumption under the law in favour of the accused's innocence, we have anxiously considered the evidence, we have anxiously considered the evidence of P.Ws. 1 to 5 to se whether it would be possible to hold that there are two reasonable views in which case even if the view in favour of conviction is considered to be more reasonable we would not be justified in interfering with the order of acquittal; but we are unable to find any reasonable accommodation for the view that the accused is not the person responsible for the fatal injuries of the deceased. The disinterested evidence is too compelling to permit any doubt of any other person being responsible for the fatal injuries of the deceased.
Sri Krishna Murthy has drawn our attention to the fact that a copy of the F.I.R. in this case received by the Magistrate at about 12.45 p.m. on 21-3-1978 and that this delay should at least be considered by this Court as a factor vitiating the value of the prosecution case against the accused. We do not think it necessary at all to give any weight to the delay. As a matter of fact, there is no need for us to suspect any mala fides in the forwarding of the copy of the F.I.R. The infliction of the fatal injuries at about 9.00 p.m. on 20-3-1978 is not in dispute. It is also not in doubt that the assailant of he deceased escaped into the premises of the Technopack Company. The hard fact remains that, even though the report is given at about 10 p.m. name of the accused is mentioned in the report. There is absolutely no purpose in delaying the F.I.R. in this case. If the F.I.R. was not really registered at 10 p.m. and if there was delay for purpose of manipulation, then the name of the accused could have conveniently been mentioned in Ex. P-1 and the copy of the Magistrate. The very fact that the name of the accused was not mentioned in the first report is a strong circumstance which rules out the possibility of any oblique reason for the delay in the forwarding of the copy of the F.I.R. to the Magistrate.
14. We now examine the evidence of the three defence witnesses. All these three witnesses are interested in the accused. They are employees of the same Technopack company. The Sub-Inspector and the Circle Inspector have denied having arrested D.Ws. 2 and 3. If these persons were really arrested and detained in illegal custody, they would have taken some appropriate legal action and there is no evidence before this Court about any such legal action. In so far as there was no name of the assailant in Ex. P-1 and as it was alleged in Ex. P-1 that the assailant of the deceased escaped into the premises of the Technopack company, it is just possible that the Police took some of the employees of the Technopack Company for interrogation and that face is perhaps being taken advantage of and magnified into a case of illegal arrest and custody. The accused was actually absconding and soon after his arrest, the accused was put up for identification parade before a Magistrate and both P.Ws. 1 and 2 identified the accused. P.W. 3 even knew the name of the accused and mentioned it at the time of the inquest.
15. Under the circumstances, we reject the evidence of D.Ws. 1 to 3 as false and hold that the case of the prosecution is true.
16. It is now to be seen as to what exactly is the offence committed by the accused even if he caused both the stab wounds. There is no evidence from the prosecution that the accused committed any offence of theft. The crowd of persons were running shouting "thief, thief" and the accused was running ahead of them. When the accused reached the Birla Company, the deceased caught hold of him. The accused thereupon stabbed the deceased and ran away. The deceased collapsed on the ground soon after the receipt of the injuries. In this context, it would be difficult to hold that the accused committed murder punishable under Section 302 I.P.C. The accused clearly had a right of private defence as against the action of the deceased. If the accused was a thief, the deceased and the others no doubt would have a right to arrest, provided a cognizable offence of theft is committed in the view of somebody; but in the absence of such evidence of the commission of any offence, it cannot be said that either the deceased or anybody else had a right to arrest the accused. Even a right to arrest does not permit more force than necessary and if a person is running away, he can just be prevented by using such minimum force as is necessary to stop him from running. The accused was caught when he was running away. He had a right of private defence to the extent of causing hurt; but he had no right to cause the death of the deceased. It is not the case of the accused that the deceased was armed with any lethal weapon. It is also not the case of the accused nor was elicited from the witnesses of the prosecution that the deceased even tried to assault the accused.
17. Under the circumstances, therefore, in causing the injuries which resulted in the instantaneous death of the deceased, it must be said that the accused had exceeded the right of private defence and so has committed as offence punishable under Section 304 Part I I.P.C. and we convict him accordingly. On a consideration of all the facts and circumstances of the case and in the light of the submission of Sri Krishna Murthy, we deem it sufficient to award a sentence of five years' rigorous imprisonment and sentence him accordingly. The State appeal is thus partly allowed.
18. Appeal partly allowed.