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2001 DIGILAW 1674 (AP)

Shaik Baba v. State Of A. P.

2001-12-20

BILAL NAZKI, GOPALA KRISHNA TAMADA

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BILAL NAZKI, J. ( 1 ) THIS is an appeal filed by the accused against the conviction and sentence in SC No. 193 of 1993. He was tried for an offence under Section 302 ipc, convicted and sentenced to life imprisonment. This case is otherwise an unfortunate commentary on our system where the accused was sent to jail at the time of his arrest after registration of the case. The charge-sheet was filed in the year 1993. The trial was completed within a period of 2 years and the judgment by the learned Sessions Judge was pronounced on 18th July, 1995. Since the appellant was in custody all along and might have been a poor man as well, he did not file the appeal but sent the appeal through jail after five years of conviction. Delay was condoned by this Court by an order dated 20-11-2000 and we are taking up the appeal on a date when the appellant has been in jail for almost nine years. ( 2 ) THE prosecution story was that, on 16th March, 1993 at about 10-30 p. m. , while the witnesses PWs. 1 to 4 along with two others went to a hotel near the Railway station, Nizamabad and were having their meals in the said hotel, the accused came there and demanded from the owner of the hotel some money. The owner was sitting on the counter of the hotel. The accused threatened the owner of the hotel and demanded money. At that time the deceased stared at the accused and the accused got agitated on this and caught hold of the collar of the deceased. PWs. 1 to 4 tried to separate them but in the process the accused stabbed the deceased in the upper portion of the stomach and he fell down. This is the statement with regard to the occurrence which has been stated by all the eye-witnesses and all these eye-witnesses are brothers of the deceased. There was no enmity between the accused and the deceased and the deceased had seen the accused for the first time. This is what has been stated by the witnesses also. The witnesses also did not know the accused prior to the date of occurrence. They have been forthright in saying that they did not know his name but after the incident they came to know about the name of the accused. This is what has been stated by the witnesses also. The witnesses also did not know the accused prior to the date of occurrence. They have been forthright in saying that they did not know his name but after the incident they came to know about the name of the accused. After they filed the report with the police the police was able to apprehend the accused. We have also seen from the statement of PW1 that the accused gave only one blow to the deceased, although he could have given many blows he did not give even a second blow. Since there was no enmity between the accused and the deceased and whatever happened had happened at the spur of the moment we do believe that the accused did not have any intention or premeditation to kill the deceased. Therefore, conviction under section 302 IPC cannot be sustained. However, the accused should have been convicted under Section 304 Part-II of IPC. ( 3 ) THEREFORE, while allowing this appeal we convict the appellant under section 304 Part-II of IPC and sentence him imprisonment to a term already undergone because we have been told that he has been in custody from 29th March, 1993. ( 4 ) BEFORE parting with the case we would like to point out that in this case the appellant who was in jail was only able to send his appeal through Legal Services authority after five long years. It is incumbent upon the Courts and the Jail authorities to inform the persons convicted of their right to appeal and if such convicts are interested in filing appeals it is the duty of the Legal Services Authority as well as the Jail authorities to provide necessary help to such convicts to file an appeal. In this case the appeal has been filed after five years of conviction. During these five years he was in custody of the Jail authorities. Therefore, we assume that he was not even informed that he could file an appeal. There might be more cases of this nature. Therefore, in order to avoid recurrence of such incidents we make the following directions : (1) That, immediately after a person is convicted by any Court he shall be informed of his right to appeal and he shall also be asked as to whether he needs an advocate. There might be more cases of this nature. Therefore, in order to avoid recurrence of such incidents we make the following directions : (1) That, immediately after a person is convicted by any Court he shall be informed of his right to appeal and he shall also be asked as to whether he needs an advocate. An answer in writing shall be taken from him by the Magistrate or the Court of Session convicting him. If he wants that an advocate should be provided to him, the Magistrate or the Sessions Judge shall accordingly take steps through legal Services Authority to appoint an advocate so that the appeal on his behalf is filed within time. (2) When the person is sent to jail after conviction it will again be the responsibility of the Superintendent of the concerned Jail to inform the convict of his right to appeal and offer him help through Legal Services authority. The offer shall be made in writing to the concerned convict and his reply shall also be taken in writing. ( 5 ) COPY of this order be sent to the chairman, A. P. State Legal Services authority so that directions are given to their units. Copy of this order shall be sent to Director General, Prisons so that directions on his behalf are also given to the jail authorities.