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Andhra High Court · body

2001 DIGILAW 1410 (AP)

Yeggoni Chinna Hussain Reddy v. State Of A. P.

2001-11-06

ELIPE DHARMA RAO

body2001
ELIPE DHARMA RAO, J. ( 1 ) THIS criminal revision case is filed against the judgment in Criminal appeal No. 103 of 1995 dated 27-1-1998 passed by the IV Additional Sessions Judge, kurnool, confirming the order in SC No. 124 of 1994 dated 18-9-1995 passed by the assistant Sessions Judge, Nandyal, convicting accused Nos. 1 to 4 under section 235 (2) of Code of Criminal procedure (Cr. PC) and sentencing them to undergo rigorous imprisonment for five years and to pay a fine of Rs. 1,000/- each for the offence under Section 307 of Indian penal Code (IPC); and further sentencing accused Nos. l to 4 to undergo rigorous imprisonment for five years and to pay a fine of Rs. 1,000/- each for the offence under Section 3 of Explosives Substances act (for short E. S. Act); and in default of payment of fine accused Nos. 1 to 4 shall undergo simple imprisonment for a period of six months on each count. Both the sentences of imprisonment shall run concurrently. ( 2 ) THE case of the prosecution is that the Sub-Inspector of the Police Uyyalawada police Station filed a charge-sheet stating that accused Nos. l to 4 and the in persons are residents of Uyyalawada V and they are close associates of one Ye srinivasa Reddy. Said Yeggoni Srin reddy and his followers previon committed murder of one Garika Par reddy, who is the maternal uncle narsireddygari Boreddy Obula Reddy at three years back. Since then there was blood flowing between Narsireddy boreddy Obul Reddy and Yeggoni Srinivas reddy. About two months perior to the of occurrence a relative of Yeggoni Srinivas reddy, by name Yeggoni Vankayala Vani reddy, was attacked with bombs by rival group. In the said case, Thirupati thikkasaidu, Kamal Basha and Chilak prasad are the accused. Yeggoni Srinivas reddy and his followers accused Nos. 1 to formed a group against Narsireddyg boreddy Obul Reddy who was supporting harijana Moogella Thirupalu. Thikkasaid kamal Basha and another, who were all accused in a complaint lodged by Yegga venkata Reddy. Thus, there were strod ill-feelings between both the groups. 27-11-1992 at about 6-00 p. m. , which narsireddygari Boreddy Obul Reddy harijana Moogella Thirupalu, Rajasekhan reddy, Gotta Bala Subbaiah, Harijan thambagalla Subbamma, Pakkiraiah were going to their home, accused Nos. Thikkasaid kamal Basha and another, who were all accused in a complaint lodged by Yegga venkata Reddy. Thus, there were strod ill-feelings between both the groups. 27-11-1992 at about 6-00 p. m. , which narsireddygari Boreddy Obul Reddy harijana Moogella Thirupalu, Rajasekhan reddy, Gotta Bala Subbaiah, Harijan thambagalla Subbamma, Pakkiraiah were going to their home, accused Nos. l to 4 is furtherance of their common intention to do away Narsireddygari Boreddy Obul reddy were waiting near Basavana Kattu and when the abovesaid persons reached the said place accused No. 1 instigated accused Nos. 2 to 4 to hurl country made bombs on Narsireddygari Boreddi Obul reddy and the boms hurled by the accused exploded and the splinters of the bombs hit the said Obul Reddy and his men who ran away helter skelter and the said Obul reddy sustained injuries. Then accused nos. 2 and 3 also hurled one bomb each against the said Obul Reddy and his men and on explosion of the bombs Obul Reddy. Harijana Moogella Thirupalu and Golla bala Subbaiah sustained injuries. In the said attack Obul Reddy sustained injuries on his both legs and on all parts of his body. Harijana Moogella Thirupalu sustained injuries to his left leg and left knee. Golla bala Subbaiah sustained injuries to his right knee and right leg. When the said obul Reddy and five others ran away accused No. 4 hurled a bomb on them and as a result Harijana Moogella Thirupalu sustained injuries on the back of right foot and Rajasekhar Reddy sustained injuries to his left side of the chest and N. T. Subbanna and Pakkiraiah also received injuries and due to bomb blasting Harijana Thambagallu subbanna sustained injury to his right elbow while Pakkiraiah received injury on his right leg. Thikka Saidu, Kamal Basha, n. Pakeeranna, N. Punamma and N. Jayamma witnessed the occurrence. On seeing the police coming there the accused ran away from the spot. On the complaint of Narsireddigari Boreddi Obul Reddy a case was registered against the accused in crime No. 34 of 1992 under Sections 324 and 307 of IPC and Sections 3 and 5 of the e. S. Act and after completion of investigation charge-sheet was filed against the accused nos. 1 to 4. ( 3 ) THE prosecution has relied on the evidence of PWs. l to 10 and documents exs. P1 to P16. 1 to 4. ( 3 ) THE prosecution has relied on the evidence of PWs. l to 10 and documents exs. P1 to P16. No witnesses were examined on behalf of the accused and no documents were marked on their behalf. ( 4 ) ON appreciation of oral evidence of PWs. l to 10 and documentary evidence, the trial Court came to the conclusion that petitioners are guilty for the offences under Section 307 of IPC and sentenced them to undergo rigorous imprisonment for a period of five years and to pay a fine of rs. 1,000/- each. They were also sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs. 1,000/- each for the offence under Section 3 of the E. S Act and in default of payment of fine to suffer simple imprisonment for a period of six months on each count. Aggrieved by the above order the matter was carried in appeal to the Court of IV Additional Sessions judge, Kurnool. The learned Sessions considered the point - whether the trial court s view in coming to the conclusion that the petitioners/petitioners are guilty of the offences punishable under Section 307 of IPC and Section 3 of the E. S. Act is correct, and if so, whether the order under appeal is liable to be set aside and confirmed the order of the trial Court, against which the present revision is filed. ( 5 ) SRI T. Bali Reddy, learned senior counsel, appearing on behalf of the petitioners raised two grounds. First, he contends that there is delay in sending First information Report (FIR) and it violates the provisions contemplated under Section 157 of Cr. PC and A. P. Police Standing Order (PSO) 487. ( 5 ) SRI T. Bali Reddy, learned senior counsel, appearing on behalf of the petitioners raised two grounds. First, he contends that there is delay in sending First information Report (FIR) and it violates the provisions contemplated under Section 157 of Cr. PC and A. P. Police Standing Order (PSO) 487. Secondly, he contends that under Section 3 of the ES Act any person who unlawfully and maliciously causes by any explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property, shall, whether any injury to person or property has been actually caused or not, be punished with transportation for life or any shorter term, to which fine may be added, or with imprisonment for a term which may extend to ten years to which fine may be added, and hence, mere explosion of bomb/s is not sufficient and unless the explosion of substance causes endanger to life or serious injury to property such punishment should not be imposed. He therefore contends that the judgments of both the Courts below have to be set aside. ( 6 ) THE learned Counsel for the petitioners also contended that after occurrence of the incident PW1 has gone to police Station and gave oral complaint and after registering FIR the Sub-Inspector sent the injured persons to the Hospital at koilakuntla, where the Office of the magistrate is also situated. Instead of sending the FIR along with the Police, who have accompanied the injured persons to hospital at Koilakuntla, he sent the FIR by post. Therefore, there was delay and the magistrate received the same on 1-12-1992 and the same is violative of provisions of section 157 Cr. PC and PSO 487. In support of his contention he relied on the judgments of the Supreme Court in Ishwar Singh v. State of UP, AIR 1976 SC 2423 , and state of Rajasthan v. Teja Singh, AIR 2001 sc 990 . ( 7 ) THE learned Counsel for the petitioners further contended that the report of the doctor and wound certificates exs. In support of his contention he relied on the judgments of the Supreme Court in Ishwar Singh v. State of UP, AIR 1976 SC 2423 , and state of Rajasthan v. Teja Singh, AIR 2001 sc 990 . ( 7 ) THE learned Counsel for the petitioners further contended that the report of the doctor and wound certificates exs. P4 to P9 clearly show that the injuries sustained by the injured are simple in nature and that the doctor, who treated the injured, in his evidence categorically stated that the injuries are simple injuries aged about 2 to 4 hours prior to his examination and might have been caused due to splinter of the bomb. ( 8 ) THEREFORE, as the injured have sustained simple injuries the explosion of bomb was not endangered life of injured and has not caused any grievous injury to property also. Moreover PW10 who inspected the scene of offence has stated that there are no iron pieces or glass pieces at the scene of offence. He further stated that the land is of loose soil there is every possibility of piercing the glass pieces and iron pieces into the ground and the marks are visible by small niches and that scene of offence was not disturbed soon after he posted his men to guard. In view of evidence of PW10, Sub-Inspector of Police, who visited the scene of offence on the next date of incident, it cannot be said offence comes under the purview of Section 3 the E. S, Act. Once offence does fall within the ambit and scope of Section of the E. S. Act, there is no question imposing punishment under Section 307 ipc. For this proposition, he relied on division Bench judgment of Calcutta His court in Nemai Adak v. State, AIR 19 calcutta 89. ( 9 ) ON the other hand, learned Publ prosecutor submitted that issued mear despatched . Therefore, as stated t pw10 after registering the FIR he has issued the same to all concerned including local Magistrate. Subsequently, copy fir was despatched in a routine manne therefore, it cannot be said that file copy was not sent to local Magistral forthwith as contemplated under Section 15 of Cr. PC and 487 of PSO. Therefore, as stated t pw10 after registering the FIR he has issued the same to all concerned including local Magistrate. Subsequently, copy fir was despatched in a routine manne therefore, it cannot be said that file copy was not sent to local Magistral forthwith as contemplated under Section 15 of Cr. PC and 487 of PSO. She also submitted that though the offence agains accused 1 to 4 does not come unde: section 3 of the ES Act, the offence attractec the provisions of Section 307 of IPC she relied on illustration (c) and second limt of Section 307. She therefore submits that the impugned judgments of the Courts below are correct and the same may be confirmed. ( 10 ) ALL the accused and the injured are the residents of Uyyalawada Village. There seems to be previous enmity between these two rival groups due to the murder of one garika Pakkir Reddy and subsequently due to the attack made on one Yeggoni Vankayala venkata Reddy with bombs. According to the prosecution, accused Nos. 1 to 4 attacked the injured PWs 1 to 6 with country made bombs in order to kill PW1 and in that attempt, they caused explosion of the bombs. The evidence of PWs 1 to 6, who are the injured and against whom the accused have attacked with bombs, have deposed that on the date of incident i,e. , on 27-11-1992 at about 5-00 p. m. , while PWs. 1 to 6 went to the house of one Venkata Reddy, who is the uncle of PW1, and while they were returning from his house at about 6-00 p. m. , on their way when they reached near Basavanna katta, which is at a distance of only 30 yards. PWsl to 4 saw accused Nos. 1 to 4 hiding behind Basavanna Katta and after they have noticed that PWs. 1 to 6 were going towards that place, all the accused got up and hurled bombs over them. PW1 further deposed that accused No. 1 after hurling a bomb, which he was holding, and he instigated accused Nos. ,2 to 4 hurl the bombs. According to PW 1 the bomb hurled by accused No. 1 exploded near him and he sustained injuries on his legs and when they wanted to ran away and disperse, accused nos. PW1 further deposed that accused No. 1 after hurling a bomb, which he was holding, and he instigated accused Nos. ,2 to 4 hurl the bombs. According to PW 1 the bomb hurled by accused No. 1 exploded near him and he sustained injuries on his legs and when they wanted to ran away and disperse, accused nos. 2 and 3 also hurled bombs over them and those bombs were exploded causing injuries of PWs. 2 to 4 and two more persons who are strangers. Soon after within one minute, accused No. 4 also hurled a bomb over them and that bomb also exploded and he sustained injury on his thigh. Thereafter, police arrived mere and on seeing the police, the accused escaped. PW2 is a cooli working under PW1. According to him one Garika pakkir Reddy was murdered about 5 years back. Since then, there were differences between him and the accused. Three years thereafter the murder of Pakkir Reddy, yeggoni Vankayala Venkata Reddy was assaulted with bombs. He further deposed that he was implicated along with Kamal basha. Tikka Saidu and one Prasad in that case. PW2 categorically submitted that while bombs hurled on them, he sustained injuries on his legs, on his right palm and on his back and also on the legs of PW1. Later on, the police came, all the accused took to their heels. Similarly, PW3 deposed about the receiving of injuries on his legs and chest. PW4 is also an injured person and is working under PW1. He deposed that accused Nos. 1 to 4 hurled bombs over mem and caused explosion due to which, he sustained injuries on his both legs. PW5 is declared hostile by the prosecution. According to her she sustained injuries due to the bomb explosion and she do not know who caused such explosion. She further denied the suggestion made by the learned additional Public Prosecutor that, she is speaking falsehood. PW6 is a child aged about 10 years. He also sustained injuries. According to him, he is a resident of uyyalawada and he know the accused and they belongs to the village Uyyalawada. According to him, the bombs were exploded near Basavannakatta. Later he had been taken to Police Station along with PWs. 1 to 5 and PW1 lodged a complaint with the police. He also sustained injuries. According to him, he is a resident of uyyalawada and he know the accused and they belongs to the village Uyyalawada. According to him, the bombs were exploded near Basavannakatta. Later he had been taken to Police Station along with PWs. 1 to 5 and PW1 lodged a complaint with the police. PW7, who is a panchayatdar for seizure of remnants, turned hostile and did not support the case of the prosecution. According to him, he signed on a white paper and he do not know that police have written over on his signature on Ex. P3 and he categorically denied the suggestion made by the learned Additional Public Prosecutor that he is speaking falsehood. Exs. P4 to 9 are the wound certificates of PWs. l to 6. According to the evidence of the Medical officer PW8 all PWs. 1 to 6 were brought to hospital on 27-11-1992 at about 8-15 p. m. , and he examined each one of them and issued the wound certificates Exs. P4 to P9 respectively. In his opinion, all the injuries sustained by PWs. l to 6 might be possible due to the splinters emanated from the bombs explosion. The details of the description of the wounds are certified by pw8 in Exs. P4 to P9 issued for PWsl to 6 respectively. PW10 is the Investigating officer. According to him on 27-10-1992 at 6-15 p. m. , PW1 came to Police Station and gave a oral complaint and the same was reduced into writing and on the basis of complaint Ex. Pl he registered a case in crime No. 34 of 1992 of Uyyalawada Police station under Sections 324, 307 read with 34 of IPC and Sections 3 and 5 of the ES act. He issued FIR. Ex. P11 to the Court. He further deposed that he has disputed two constables to guard at the scene of offence. He sent the injured persons to the Government Hospital, Koilkuntla for treatment. He has recorded the statements of PWs. 1 to 6 and another. Thereafter, he searched for the accused, who were absconding. On 28-11-1992 at 8-00 a. m. , he visited the scence of offence along with panchayatdars, Thirupal and Nazeer Ahmed and there he seized the remnants of the bombs under a cover of panchanama Ex. P12. He sent the property to the Court under ex. 1 to 6 and another. Thereafter, he searched for the accused, who were absconding. On 28-11-1992 at 8-00 a. m. , he visited the scence of offence along with panchayatdars, Thirupal and Nazeer Ahmed and there he seized the remnants of the bombs under a cover of panchanama Ex. P12. He sent the property to the Court under ex. P13 along with requisition Ex. P14 and letter of advice Ex. P15 for sending the same to the Forensic Science Laboratory, hyderabad for examination and opinion, and the Court received the opinion of the expert ex. P16. PW9 is the Clerk working in collectorate, Kurnool. He deposed that the sanction was accorded by the District collector, Kurnool vide Ex. Plo. ( 11 ) THE Supreme Court in the cases relied on by the learned Counsel for the petitioners has interfered in matters where the delay in sending FIR to the local magistrate was not properly explained. Section 157 contemplates that FIR should be sent to local Magistrate forthwith. Police Standing Orders, though not having statutory force to implement, they are executive guidelines issued to perform the duties to Police Officials in discharge of their duties. Therefore, when there is urgency a copy of the FIR shall be sent to the local Magistrate forthwith for his information. ( 12 ) PSO 487 contemplates that in grave crimes a copy of the FIR shall be sent direct to the Superintendent of Police, to the Sub-Divisional Officer, to the Circle inspector, to the local Magistrate and also to the Magistrate having jurisdiction in case he is not local Magistrate. In specially grave occurrences, a copy of the FIR shall also be sent to the Collector . Sub-clause (i) of Clause (1) of PSO 487 deals with case of possession or manufacture or use of bombs or explosives. Whether political or not. Clause (2) of PSO 487 contemplates that these reports are termed "express reports" and should be sent by hand as quickly as possible. A copy of the FIR under his order nee, however, be sent only by post and not by hand except in respect of local delivery in cases where telegraphic or radio reports are sent under pso 488. ( 13 ) THE Forensic Science Laboratory (FSL) report shows that the two items which were sent for examination were analysed, and Potassium, Chlorate, Chloride, Arsenic, sulphide and Sulphate were found. ( 13 ) THE Forensic Science Laboratory (FSL) report shows that the two items which were sent for examination were analysed, and Potassium, Chlorate, Chloride, Arsenic, sulphide and Sulphate were found. The explosives expert, FSL, Hyderabad opined that the items examined were remains of one or more exploded bombs of thrown down type which had contained explosives mixture of Potassium, Chlorate, Arsenic, suplhide and Sulphur before explosion. ( 14 ) SECTION 307 of IPC deals with attempt to murder which contemplates whoever does any act with such intention of knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to find, and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinabove mentioned. When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused be punished with death. ( 15 ) IN Ishwar Singh s case (supra) the supreme Court considered the scope of section 157 of Cr. PC which contemplates that the FIR in respect of cognizable offence has to be sent forthwith to a Magistrate competent to take cognizance of offence. Unexplained delay of two days in sending fir to Magistrate was considered by the supreme Court and held that the extraordinary delay in sending FIR is a circumstance which provides a legitimate basis for suspecting that the FIR was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence. Section 157 of Cr. PC 1898 as well as 1973 stipulate that FIR has to be sent forthwith to the Magistrate competent to take cognizance of the offence. No explanation is offered for the extraordinary delay in sending the report to the Magistrate and this is a circumstance which provides legitimate basis. Section 157 of Cr. PC 1898 as well as 1973 stipulate that FIR has to be sent forthwith to the Magistrate competent to take cognizance of the offence. No explanation is offered for the extraordinary delay in sending the report to the Magistrate and this is a circumstance which provides legitimate basis. In the said case the FIR was lodged on 14-2-1973 at 9-05 a. m. , was sent out from the Police station the next day, February, 15, the time when it was despatched is not stated, but it appeared from the record that the magistrate received in on the morning of february, 16. The Court of the Magistrate was nearby which makes it difficult to understand why the report was sent to him about two days after its stated hour of receipt at the Police Station. In those circumstances, the Supreme Court held that Section 157 of Cr. PC 1898 as well as cr. PC 1973 both requires that FIR has to be sent forwith to the Magistrate competent to take cognizance of the offence. Therefore, as no explanation is offered for extraordinary delay in sending the FIR the Supreme Court interfered with the judgment of the High court, which confirmed the order of conviction and sentence passed by the trial court, and set aside the order of conviction and sentence. ( 16 ) IN Teja Singh s case (supra) the supreme Court considered the delay of two days in sending FIR to Magistrate and held that the explanation putforth in regard to delay in FIR reaching the Court is not tenable because assuming that mere were some Court holidays that cannot be a ground for the delay in the FIR reaching the magistrate as requirement of law is that the FIR should reach the concerned magistrate without any undue delay. Their lordships opinioned that the explanation given by the prosecution regarding delay in FIR reaching the Magistrate is neither convicting nor acceptable. ( 17 ) IN Nemai Adah s case (supra) a division Bench of Calcutta High Court considered Section 3 of the ES. Act and it was held that so far as charge under section 3 of the E. S. Act is concerned it has to be established that the accused concerned caused an explosion of a nature likely to endanger life or to cause serious injury to property. Act and it was held that so far as charge under section 3 of the E. S. Act is concerned it has to be established that the accused concerned caused an explosion of a nature likely to endanger life or to cause serious injury to property. the position appearing from the evidence is want of proof that the explosions actually caused by them were of a nature likely to endanger life or to cause serious injury to property and such being the case the conviction of the concerned petitioners under Section 3 of the Act although based on the Expert s evidence that a bomb of the type examined by him would be capable of endangering life on explosion is not justified, particularly in view of his positive evidence in cross-examination which shows that although a chemical examination of the remnants of a country made bomb indicated existence of potash chlorate and arsenic sulphide therein, it is on the quantity and proportion of the said ingredients about which there is no evidence, that the mischief making power of a bomb depends. We find that in the face of the positive evidence as to the nature of the explosions caused by the bombs in this case, the conviction of the concerned petitioners under Section 3 of the Explosives substances Act and the sentence passed thereunder by the lower Court set aside. ( 18 ) THE evidence of Sub-Inspector of police PW10, that he registered the FIR at the instance of PW1 who came to the Police Station and gave oral complaint which was reduced into writing Ex. P1. On the basis of Ex. P1 he registered case in crime No. 34 of 1992 of Uyyalawada Police station under Section 324, 307 read with section 34 of IPC and Sections 3 and 5 of the E. S. Act It is specifically stated that after registering FIR he issued FIR copies to all the concerned authorities and Ex. P11 is the FIR copy sent to Court. In the cross-examination pwio has stated that it is not true to say that Ex. P11 was not ready by the time he sent the injured to Hospital and therefore he did not send the FIR through constables who took the injured to hospital. He sent the copy of FIR Ex. P11 is the FIR copy sent to Court. In the cross-examination pwio has stated that it is not true to say that Ex. P11 was not ready by the time he sent the injured to Hospital and therefore he did not send the FIR through constables who took the injured to hospital. He sent the copy of FIR Ex. P11 in routine course through post which was received in the Court on 1-12-1992, therefore, it is evident from the evidence of pwio that soon after registering FIR he has sent FIR to the concerned authorities including the Court, but a copy of the FIR ex. P 11 was sent by post in a routine manner and the same was received by the magistrate on 1-12-1992. Therefore, it cannot be said that there is delay in sending fir to the local Magistrate in violation of provisions of Section 157 of Cr. PC and pso 487. Hence, the judgments relied on by the learned Counsel in Ishwar Singh, case (supra), Teja Singh case (supra) and nemai Adak case (supra) are not applicable to the facts of the case. ( 19 ) THEREFORE, as seen from the facts and circumstances of the case, due to explosion of bombs by accused Nos. 1 to 4 injured received injuries. Hence, the offence comes within the ambit of Part 1 of section 307. Therefore, the accused shall be liable for conviction and sentence accordingly and I am satisfied that the conviction and sentence imposed by the court below quite right as the offence attracts the provisions of Section 307 of IPC and that it cannot be said that when once the offence does not attract the provisions of section 3 of the E. S. Act the conviction and sentence cannot be imposed under section 307 of JPC. I am also satisfied that there is no delay in sending FIR to local magistrate as the FIR was sent within the provisions of Section 157 Cr. PC read with 487 of PSO and the offence committed by accused 1 to 4 falls within the ambit of Section 3 of the E. S. Act and Section 307 of IPC. ( 20 ) IN the result, The criminal revision case is dismissed, confirming the judgment of the learned IV Additional Sessions Judge, kurnool, dated 27-1-1998 in Criminal appeal No. 103 of 1995. ( 20 ) IN the result, The criminal revision case is dismissed, confirming the judgment of the learned IV Additional Sessions Judge, kurnool, dated 27-1-1998 in Criminal appeal No. 103 of 1995. The petitioners shall surrender before the trial Court to undergo the sentence.