Andhra HC (Pre-Telangana)
Guvvala Kotaiah vs State Of Andhra Pradesh on 8 September, 1989
Equivalent citations: 1990CRILJ934
JUDGMENT
1. The sole accused is the appellant herein. He was convicted under S. 304 Part II I.P.C. and sentenced to suffer R.I. for eight years. He was also convicted under S. 324 I.P.C. and sentenced to suffer R.I. for six months. He was further convicted under S. 323 I.P.C. and sentenced to suffer R.I. for three months. All the sentences were directed to run concurrently.
2. The facts of the case are : The accused in a student of 8th class in Government Junior College, Miryalaguda, and a resident of Yadgarpalli village. The deceased Shaik Yacob was a student of 10th Class in the Government Junior College at Miryalaguda and a resident of Harijanawada of Miryalaguda town. The injured Jani Pasha P.W. 1. Vishnu Kumar P.W. 2 and Srinivas P.W. 3 are friends of the deceased. There was a quarrel about two days prior to the incident in between the accused and the deceased and P.W. 3, On 18-4-1987 P. Ws. 1 and 3 on one cycle and the deceased and P.W. 2 on another cycle were going towards the Government Junior College in the afternoon. By the time they reached the road in front of 'Still Tailors' near the Government Hospital, the accused came in the opposite direction on a cycle and stopped them and questioned why they were looking at him and picked up a quarrel with P.W. 3. Thereupon P.W. 2 interfered and he was pushed away by the accused. The accused pulled out a knife and stabbed P.W. 3 on the left side of the shoulder and then the deceased interfered and questioned why the accused was stabbing so many people. Immediately thereafter the accused stabbed with the same knife on the left side chest of the deceased and the deceased fell down. The accused was trying to run away. P.W. 1 caught hold of him and he was brought to the Police Station by P. Ws. 1 and 2 and the matter was reported to the police and thereupon the knife was also seized by the police from the possession of the accused. P.W. 7, the Assistant Sub-Inspector of Police, received the report Ex. P1 and registered the same as Cr. No. 25/87 under S. 302 and 324 I.P.C. P.W. 7 seized the knife. M.O. 1, in the presence of P.W. 6 under a Panchanama. He issued F.I.R., Ex. P. 12. P.W. 6, the Inspector of Police, took over the investigation. He arrested the accused. Then he went to the Government hospital where he found the dead body of the deceased. He conducted inquest over the dead body. He examined P. Ws. 1 to 3 and others at the time of inquest. As P. Ws. 1 to 3 received injuries, they were sent to the Government Hospital and they were got examined by the Doctor, P.W. 5. The dead body was thereafter sent for post-mortem examination. P.W. 5 conducted post-mortem on the dead body of the deceased and issued the post-mortem certificate Ex. P. 3. He also examined P.Ws. 1 to 3 and issued wound certificates Exs. P4 to P6. P.W. 6, after completing the investigation, filed the charge-sheet in this case.
3. The prosecution in all examined P. Ws. 1 to 8 and marked Exs. P1 to P12. The defence marked Exs. D1 to D4.
4. When examined under S. 313 Cr.P.C. the accused denied the offence and pleaded not guilty.
5. The Court below, after considering the entire material evidence on record, convicted the accused as stated supra. As against that, this present appeal has been filed.
6. The only point in this appeal to be decided is whether the accused guilty of the offence or not.
7. The prosecution story as deposed by P.W. 1 is that on the date of the incident P. Ws. 1 and 3 on one cycle and the deceased and P.W. 2 on another cycle were going to the college, that by the time they reached the place where the incident occurred the accused came in opposite direction on a cycle and picked up a quarrel with P.W. 3 and that thereupon P. Ws. 1 and 2 interfered. In that process P.W. 2 fell down and when P.W. 3 questioned, P.W. 3 was stabbed by the accused on his left shoulder. Then the deceased intervened stating why he was stabbing so many people and thereupon the accused stabbed the deceased on the left side of his chest. The deceased fell down with bleeding injuries. It is in the evidence of P.W. 1 that he caught hold of the accused. Then the accused fisted him on his left eye brow. Thereupon P.W. 2 came there and P. Ws. 1 and 2 caught hold of the accused. P.Ws. 1 and 2 placed the deceased in a rickshaw and took him to a Hospital where he was declared dead. They took the accused to the Police Station along with the knife and handed over to the S.I. and a report Ex. P1 was also given to that effect and he was examined by the C.I. of Police, P.W. 6. This witness was cross-examined at length. It was suggested to him that there were rivalry disputes between them regarding the Students Union, but he denied the same. It was suggested to him that four of them were coming on cycles and found the accused coming alone and beat him. He denied the same. He also denied the suggestion that due to political rival union, this case is foisted against the accused. P.W. 1 is an injured person. He was examined by the Doctor, P.W. 5. He issued a wound certificate Ex. P4 and found the following injury :
"There is a contusion over the left ankle of left eye 1/2" x 1/4".
Thus the injury received by him probablises the presence of P.W. 1 at the time of offence and apart from that, he himself gave a report Ex. P5 to the Asst. Sub-Inspector of Police, P.W. 7. P.W. 2 is also an injured witness at the hands of the accused. He corroborated the entire evidence of P.W. 1. He was also cross-examined at length. It is suggested to him that due to previous enmity, all of them stabbed the deceased, but he denied the suggestion. He also denied the suggestion that the accused had not pulled the knife nor stabbed the deceased. There is nothing significant in the cross-examination to discredit his evidence. He also received injuries at the hands of the accused. P.W. 5 examined him and issued the would certificate Ex. P5. similarly, P.W. 3 who is an injured witness, corroborates the evidence of P. Ws. 1 and 2 in all material particulars. He was also examined by the Doctor and a would certificate, Ex. P-6, was issued. Thus, the presence of the witnesses is established at the scene of offence. The facts are all mentioned in the earliest report, Ex. P-1, given by P.W. 1.
8. It is contended that after receiving injuries, P.W. 3 ran away from the scene of offence and therefore he would not have accompanied the accused to the police station. Therefore, his evidence cannot be accepted. First he might have gone out of the scene of offence after having been beaten and later might have followed P. Ws. 1 and 2 and the deceased to the hospital. That by itself does to make the evidence of P.W. 3 false. P.W. 4 is the panch witness. He corroborated the evidence of P. Ws. 1 to 3 to the effect that they brought the accused along with the knife before the police. P. Ws. 5 and 7 also corroborated the evidence of P. Ws. 1 to 3. Thus, the prosecution has established the guilt of the accused beyond all reasonable doubt. Therefore, the Court below has rightly convicted the accused.
9. The learned counsel for the appellant has contended that the accused is only eighteen years on the date of the offence and therefore the Court below ought to have applied the provisions either under S. 360 of the Code of Criminal Procedure or under S. 4 of the Probation of Offenders Act or under S. 8 of the Borstal Schools Act. No doubt, as submitted by the learned counsel. Section 361 of the Code of Criminal Procedure mandates that special reasons have got to be recorded in cases where the convicts were not dealt with under the above referred and similar provisions though they could have so dealt with.
10. The impetus that gave rise to the introduction of S. 361 as also section 235 Cr.P.C., can apparently be traced to certain observations of the Supreme Court and other High Courts in our country. In Hiralal's case the Supreme Court had occasion to observe :
"... Our Judicial Processes and sentencing paradigms must lead kindly light along the correctional way. That is why Gandhiji emphasised the hospital setting, the patient's profile in dealing with 'criminals'. In-patient, out-patient and domicillary treatment with creative orientation is the penological reverence to the Father of the Nation."
In Mohammad Giasuddin's case the Supreme Court spoke comprehensively in the reformist strain basing it on the proclaimed cultural history of our country right from the days of Valmiki to Gandhiji that a sinner of today may transform to be a potential saint of tomorrow, of course, subject to propitious circumstances. It is observed (at p. 1559 of Cri LJ) :
"Now we enter the area of punitive treatment of criminals, assuming that the guilt has been brought home. Certain elemental factors are significant strands of criminological thought. Since the whole territory of punishment in its modern setting is virtually virgin so far as our country is concerned, we may as well go into the subject in some incisive depth for the guidance of the subordinate judiciary. The subject of study takes us to our cultural heritage that there is divinity in every man which has been translated into the constitutional essence of the dignity and worth of the human person. We take the liberty of making an Indian approach and then strike a cosmic note."
11. Again in Jagmohan Singh's case it is observed :
"The sentence follows the conviction, and it is true that the formal procedure for producing evidence with reference to the sentence is specifically provided. The reason is that relevant facts and circumstances impinging on the nature and circumstances of the crime are already before the Court. Where counsel addresses the Court with regard to the character and standing of the accused, they are duly considered by the Court unless there is something in the evidence itself which belies him or the Public Prosecutor for the State challenges the facts ....."
In P. K. Tejani's case it is observed :
"Finally comes the post-conviction stage where the current criminal system is weakest. The Court's approach has at once to be socially informed and personalised. Unfortunately, the meaningful collection and presentation of the penological facts bearing on the background of the individual, the dimension of damage, the social milieu and what not these are not provided in the Code and we have to make intelligent hunches on the basis of materials adduced to prove guilt. In this unsatisfactory situation which needs legislative remedying we go by certain broad features."
Again in Shiva Prasad's case 1969 Ker LT p. 862 the Kerala High Court had the occasion to observe :
"Criminal trial in our country is largely devoted only to finding out whether the man in the dock is guilty. It is a major deficiency in the Indian System of criminal trials that the complex but important sentencing factors are not given sufficient emphasis and materials are not presented before the court to help it for a correct judgment in the proper personalised, punitive treatment suited to the offender and the crime."
12. In this background of the observations, the resultant product is the incorporation of S. 361 in the Code of Criminal Procedure, which reads :
"361. Special reasons to be recorded in certain cases :- Where in any case the Court could have dealt with -
(a) an accused person under Section 360 or under the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or
(b) a youthful offender under the Children Act, 1960 (60 of 1960), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record in its judgment the special reasons for not having done so."
The duty which is mandatory in nature is thus case by Section 361 Cr.P.C., on the Courts to assign special reasons in the judgment in cases where the accused are not dealt with either under Section 360 Cr.P.C., or under the Probation of Offenders Act, or under the Children Act or under any other law for the time being in force, though the accused could have been dealt with either under the said provision or other enactments. At the same time as observed by the Supreme Court Delhi High Court Jai Parkash's case 1979 Cri LJ 1167 the benefit under section 360 Cr.P.C., as also under several other reformatory legislations can be denied for special reasons to be recorded but at the same time it is the duty of the Courts to consider why compliance with the beneficial provisions could be dispensed with even if the accused did not make any such request. It is to be noticed here that in view of the reformatory theory of punishments, section 360 Cr.P.C., The Probation of Offenders Act, Children's Act, 1960, A. P. Borstal School Act, Suppression of Immoral Traffic (in Women and Girls) Act, etc., have been brought in. Therefore, whenever the facts and circumstances of the case call for extension of the benefit conferred by the said provision and the several enactments, it is the duty of the Courts to extend the said benefit. In case the court feels in a particular case that the convict could not be dealt with under the said provision and the several other enactments, it is its mandatory duty to assign special reasons in the judgment for denying the said benefit to the convicts.
13. In the present case it is not disputed that the accused was aged 18 years at the time of commission of the offence and was studying 8th class. It is also stated that the accused is not having a bad record and his antecedents are good. Therefore, the Court below ought to have directed sending him to the Borstal School in terms of S. 8 of the Borstal School Act instead of sentencing him to suffer imprisonment in a regular prison. Accordingly I set aside the sentence of imprisonment imposed by the lower Court against the appellant while affirming the conviction. However, the appellant-accused shall be sent to the Borstal School for a period of three years under S. 8 of the A. P. Borstal Schools Act, 1955.
14. With this modification in sentence, the appeal is dismissed.
15. Order accordingly.