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2004 DIGILAW 1350 (AP)

Shaik Sondu v. State Of A. P.

2004-11-11

P.S.NARAYANA

body2004
( 1 ) THE appellants, A1 to A3 in Sessions Case No. 288 of 1995 on the file of Sessions Judge, Khammam preferred the present Criminal Appeal as against the conviction and sentence imposed against them by judgment dated 27. 07. 1999 whereunder A1 was convicted for the offence punishable under Section 304-II IPC and sentenced to undergo Rigorous imprisonment for a period of five years and A2 and A3 were convicted for the offence punishable under Section 324 IPC and sentenced to undergo Rigorous imprisonment for a period of one year each. ( 2 ) THE Inspector of Police, Kothagudem filed charge sheet against the accused before the Judicial Magistrate of First Class, Kothagudem in crime No. 83 of 1995 of I Town Police Station, Kothagudem under Section 302 read with 34 IPC, which was taken on file by the learned Magistrate as P. R. C. No. 64 of 1995 and the same was committed to the Court of Session, Khammam and the learned Judge recorded the evidence of P. Ws. 1 to 14 and marked Exs. P1 to P8 and MOs 1 to 7 in S. C. No. 288 of 1995 and ultimately recorded conviction and imposed sentence as referred to supra. ( 3 ) THE case of the prosecution is as follows: on 23. 05. 1995 the auto bearing No. AHT 9050 being driven by A1 was engaged by marriage party in connection with marriage of cousin sister of the deceased Shaik Salam, who was a KD sheeter in Kothagudem I Town Police Station and resident of Ramanjaneya Colony, Kothagudem, to carry the couple from the venue to bus stand for Rs. 40/ -. While carrying the couple from the venue, on the way, A1 refused to take the couple on the plea that it was too late and he had to attend some urgent work an then insisted the couple to get down from the auto and then the deceased Shaik Salam intervened in the matter and there arose a quarrel between A1 and the deceased and then P. W. 1 intervened and pacified the quarrel and that on the next day on 24. 05. 1995 at about 6 Pm, the deceased went to the house of A1 and shouted at them, keeping the grouse regarding previous incident and on 25. 05. 05. 1995 at about 6 Pm, the deceased went to the house of A1 and shouted at them, keeping the grouse regarding previous incident and on 25. 05. 1995 at about 6 Pm, the deceased went to the house of A1 and shouted at them, keeping the grouse regarding previous incident and on 25. 05. 1995 at about 9 Am, the deceased again went to the house of A1 and abused him in filthy language, challenged him as to why they reported the matter in he police station and that the accused, who were waiting for a chance to teach a lesson to the deceased, took advantage of the situation, A1 beat the deceased with a handle of the axe on his head, A2 beat with a cot wooden rafter on his legs, to which the deceased ran towards the house of Ramzan and then A1 to A3 chased the deceased, caught hold of him near the house of Ramzan and beat him indiscriminately. A3 also beat with a wooden rafter of cot and caused fatal injuries with an intention to do away with the deceased and that P. W. 1, the brother of the deceased, Shaik Mahaboob, P. W. 2, Shaik Khader and another witnesses the attack on the deceased and that Shaik Salam, who received injuries in the attack succumbed to the injuries on the intervening night of 25/26. 05. 1995 at about 1. 20 Am. It is further alleged that A1 to A3 were arrested on 06. 06. 1995 and at their instance, the handle of the axe from A1, 3 pieces of wooden cot rafter from A2 and one cot rafter from 3 were recovered. ( 4 ) SRI Jaipal Reddy, learned counsel representing appellants/accused had taken this Court through the specific averments made in Ex. P1, which is in Telugu and would refer to the word goddali which means an axe. Learned Counsel made elaborate submissions on the improvement made by the prosecution relating to this aspect that goddali has been referred to in Ex. P1, ultimately a different improved version was given as though axe stick was used in the commission of the offence. Learned counsel also would submit that even as perm the version of P. W. 1, A1 and A2 caused two injuries and one more injury was caused on the road. The medical evidence does not show these injuries. P1, ultimately a different improved version was given as though axe stick was used in the commission of the offence. Learned counsel also would submit that even as perm the version of P. W. 1, A1 and A2 caused two injuries and one more injury was caused on the road. The medical evidence does not show these injuries. Learned counsel also pointed out that the two injuries, one with axe and anther with mancham katte which means stick used for cot legs, there is no corresponding injury as revealed by the medical evidence in relation to the axe said to have been used and hence, the improved version of wooden part of the axe had been introduced. Learned counsel also commented about the conduct of the deceased and his bad history and would contend that the probability of the deceased being attacked by certain other enemies of the deceased also cannot be ruled out. P. W. 2 infact is not an independent witness, but a relative witness. P. Ws. 1, 2, 3 and 4 all are relative witness of the deceased. The delay in dispatching the FIR would definitely go to show that Ex. P1 was subsequently thought of to suit the version of the prosecution and hence, the same may have to be viewed with suspicion. Learned counsel also would point out that as per the evidence available on record, it is highly doubtful, whether grievous injury, injury No. 7, which had resulted in the death of the deceased was caused by either A1 or A2. Axe injury and the medical evidence would throw any amount of doubt on the prosecution. Learned counsel had taken this Court through the evidence available on record in detail and made elaborate submissions pointing out the infirmities in the version of the prosecution. Learned counsel also would submit that if the concept of overt acts to be followed, then it is doubtful who had caused the fatal injury, injury No. 7. It would be definitely unjust to convict A1 under Section 304-II IPC. ( 5 ) PER contra, learned Additional Public Prosecutor, Sri Mohd. Osman Shaheed, would submit that it is no doubt true that goddali- axe has been specified in Ex. P. 1. P. W. 1 specifically deposed about commission of the offence and the weapon being wooden part of an axe. ( 5 ) PER contra, learned Additional Public Prosecutor, Sri Mohd. Osman Shaheed, would submit that it is no doubt true that goddali- axe has been specified in Ex. P. 1. P. W. 1 specifically deposed about commission of the offence and the weapon being wooden part of an axe. Hence, there is no discrepancy in between the evidence of P. W. 1 and Ex. P. 1 and also in between the direct evidence available on record and the medical evidence. Learned Additional Public Prosecutor also would contend that merely because P. W. 1 is the brother of the deceased, his evidence cannot be disbelieved. He had placed reliance on Barati v. State of U. P. ( AIR 1974 SC 839 ) and Shamu Balu Chugule v. State of Maharashtra ( AIR 1976 SC 557 ). Learned Additional Public Prosecutor also would submit that the evidence of P. W. 1 is so natural, well supported by other evidence available on record and hence, the version of the prosecution may have to be believed. Further, the learned Additional Public Prosecutor also would submit that the mere fact that there was some delay in dispatch of FIR always would not be fatal to the version of the prosecution. Reliance was placed on Sushil v. State of U. P. (1995 (1) ALT (Crl.) 64 (SC)) in this regard. ( 6 ) HEARD both the counsel. The prosecution relied on the evidence of the medical officers, P. Ws. 11 and 13 and also the inquest panchayatdar, P. W. 7 and P. W. 14, the investigating officer to establish that the death of the deceased is homicidal. P. W. 1 is the brother of the deceased. He deposed as under. ( 7 ) SHAIK Salam was my elder brother. I know all the accused and they are also residents of our colony, except A2, who is a resident of Bethampudi Village. All the accused are closely related to each other. On 25. 05. 1995, A1 to A3 killed my elder brother Salam. ( 8 ) ON 23. 05. 1995 my cousin sisters marriage had taken place. A1 is an auto driver. The new couple had engaged the auto for Rs. 40/- to go to the bus stand. On the way, A1 wanted the newly wedded couple to get down the auto as he had some other work. ( 8 ) ON 23. 05. 1995 my cousin sisters marriage had taken place. A1 is an auto driver. The new couple had engaged the auto for Rs. 40/- to go to the bus stand. On the way, A1 wanted the newly wedded couple to get down the auto as he had some other work. There arose some quarrel between my brother late Salam and A1. In that context, A1 filed a report against my brother, the deceased in this case. On 25. 05. 1995 in the morning my brother went to the house of A1 for purpose of compromise and to request for withdrawal of the report. While I was going to the house of my mothers sister, on the way I found Salam coming with bleeding injuries being chased by A1 to A3 armed with sticks. A1 was armed with stick that will be used for axe. A2 and A3 are having sticks that will be used for cot. In my presence, A1 to A3 beat my brother Salam and my brother fell down in front of the house of one Ramzan. A1 again beat my brother with axe stick on his head. A2 and A3 also beat on the legs of the deceased with sticks, after the deceased fell down. My brother received injuries all over the body. ( 9 ) WHEN I went to the rescue of my brother A1 to A3 ran away through the lane. Myself, Shaik Khadri-:. W. 3, Jahainger Khan-L. W. 4 and Zaheeda-L. W. 2 witnesses the attack on the deceased by the accused. P. W. 1 further deposed that earlier there were disputes between his brother and the accused, but he has no personal knowledge about the same. P. W. 1 and L. Ws. 2 to 4 had taken the injured to Singareni Collieries Hospital in an auto rickshaw. Afterwards he went to Kothagudem I town Police Station and gave report. The report was drafted by one Mahaboob Ali. He drafted the report on P. W. 1s dictation and read over to him. P. W. 1 admitted the contents and put his signature. It is Ex. P1. It may be appropriate to have a look at Ex. P1, which reads as follows: p. W. 1 also deposed that he studied upto VIIth class. On the same day night at about 1 a. m his brother Salam died due to injuries. P. W. 1 admitted the contents and put his signature. It is Ex. P1. It may be appropriate to have a look at Ex. P1, which reads as follows: p. W. 1 also deposed that he studied upto VIIth class. On the same day night at about 1 a. m his brother Salam died due to injuries. MO1 is the blood stained shirt and MO2 is the blood stained lungi worn by the deceased. P. W. 1 was cross examined at length. ( 10 ) IN his cross examination, P. W. 1 deposed that there are about 40 to 50 houses in between his house and the house of A1. The distance between them is about one furlong. Several questions were put to him in relation to the topographical features of the neighbours, most probably to establish that none of them had been examined and there is some improbability in the version of the prosecution. This witness also deposed that his brother was convicted thrice in theft cases and underwent imprisonment and he used to take alcohol. P. W. 1 was also cross examined about the circumstances that took place prior to the incident. P. W. 1 also deposed that while his brother was coming running, the respondents came out from their respective houses and he cannot say how many people came out. None of the neighbours interfered while his brother was being attacked by the accused. The family members of Ramzan did not go to the rescue of his brother. They were simply witnessing from inside the house by the time his brother fell down. P. W. 1 also deposed that he did not mention in Ex. P. 1 report about the incident on 23. 05. 1995. P. W. 1 further deposed that it is true that he got it mentioned in his report, Ex. P. 1 that by the time he went to his brother, people had gathered around his brother. P. W. 1 further deposed that before taking his brother to the hospital in the auto, he got the report, Ex. P1 drafted in their colony itself and then took his brother to the Police Station where he had presented the report and thereafter the police sent his brother to Government Hospital and then to Singareni Collieries Hospital. The other suggestion put to this witness also had been denied. P1 drafted in their colony itself and then took his brother to the Police Station where he had presented the report and thereafter the police sent his brother to Government Hospital and then to Singareni Collieries Hospital. The other suggestion put to this witness also had been denied. ( 11 ) P. W. 2 deposed that she heard cries from inside the house of A1 and on hearing that quarrel, she went to the house of A1. The deceased was quarreling with A1 and A2 and A1 dealt a blow with a stick on the head of the deceased. Salam started running towards his house and A1 to A3 chased him. After Salam fell down in front of the house of Ramzan, A1 to A3 beat him. A1 again beat Salam with an axe stick on the head and legs of the deceased. A2 and A3 beat the deceased with cot sticks. Salam received bleeding injuries. P. W. 1, Khadir, and Zahangir came there and on seeing them, A1 to A3 run away. This witness was cross examined at length. The suggestion put to her also had been denied. ( 12 ) P. W. 3 deposed that on 23. 03. 1995, his sister-in-laws marriage took place and this witness also deposed about engaging A1s auto to carry the couple in procession and other aspects and quarrel between A1 and the deceased. P. W. 3 further deposed that on the next day morning at about 8. 30 am he went to the house of his sister-in-law where the marriage took place. A1 to A3 called Salam to their house for compromise. Salam went to the house of A1. While he was at the house of his sister-in-law, he heard some cries. When he came out, he found Salam running with bleeding injuries being chased by A1 to A3. P. W. 1 was also running towards Salam. Then P. W. 3 also went there. A1 is having stick, which is used as handle of an axe and A2 and A3 were having sticks, which are used for cot. A1 to A3 beat the deceased with the said sticks all over the body. The incident happened in between the house of A1 and P. W. 2. P. W. 2 also came there and witnesses the incident. This witness was also cross examined at length and the suggestions put to this witness were denied. A1 to A3 beat the deceased with the said sticks all over the body. The incident happened in between the house of A1 and P. W. 2. P. W. 2 also came there and witnesses the incident. This witness was also cross examined at length and the suggestions put to this witness were denied. ( 13 ) P. W. 4 also deposed about bringing of the auto of A1 along with A1 to carry Shaik Parveen and her husband to the bus stand and he deposed about the incident on the day. On the date of the alleged incident, he had been to his work in Kinnera Steels. In the evening, he went to the Singareni Collieries Hospital and saw the dead body of Salam. P. W. 5 was examined who had deposed about bringing auto of A1 for carrying him and his wife to the bus stand as they were intended to go to their village and this witness also deposed about the prior incident. ( 14 ) P. W. 6 deposed that P. W. 1 approached him and requested to draft a report on his dictation, on that he drafted the report, read over the contents to P. W. 1, which P. W. 1 admitted to be true and affixed his signature by the side of P. W. 1s signature on Ex. P1. This is the evidence available on record in relation to the prior incident, the incident proper and the drafting of Ex. P1 and giving report, Ex. P1 by P. W. 1. P. W. 7 deposed about inquest report, Ex. P. 2 and also the seizure of MOs1 and 2. P. W. 8 had acted as mediator, who had deposed about the seizure of MO3, the blood stained earth and MO4, control earth. This witness also deposed about affixing his signature on Ex. P3. P. W. 9 is another mediator who deposed about the interrogation of A1 to A3. He stated that A1 produced one axe stick, MO5 during interrogation and A2 and A3 produced two cot sticks, MOs6 and 7. The admissible portion of the said panchanama is marked as Ex. P4. P. W. 10 is the photographer who deposed about taking of the photographs, Exs. P5 to P9. P. W. 13 is the medical officer in Singareni Collieries Hospital who examined the deceased and found the following injuries. The admissible portion of the said panchanama is marked as Ex. P4. P. W. 10 is the photographer who deposed about taking of the photographs, Exs. P5 to P9. P. W. 13 is the medical officer in Singareni Collieries Hospital who examined the deceased and found the following injuries. 1) Lacerated wound 3 with fresh bleeding over left parietal bone. 2) A deep laceration of 2 with fresh bleeding over right parietal bone. 3) Abrasion with swelling right upper fore arm. 4) A laceration of 1 on right ankle with fresh bleeding. ( 15 ) THIS witness also deposed about issuance of wound certificate, Ex. P14 and expiry of the patient. After the death of the deceased, the hospital authorities informed the I Town Police Station about the death. The said intimation letter is Ex. P15, dated 26. 05. 1995. This witness deposed that he did not find any external injuries other than the four injuries noted in Ex. P14. P. W. 11 is the medical officer working as Civil Assistant Surgeon in Community Hospital, Kothagudem who conducted autopsy over the dead body and found the following ante-mortem injuries. 1) Single suture laceration x above the right ankle simple and ante-mortem. Caused by blunt weapon. 2) Contusion 1 x 1 over the right chin. 3) Multiple abrasions 4 in number x on the left hand knuckles. 4) Abrasion with Heamotoma over the left illac crest. 5) 6 in number contusion 2 x 1 with Heamatomas on the left upper arm. 6. Contusion with Heamotoma right forearm 4 x 3 x 1. 7. Sutured laceration 2 x 1 on the right parietal and frontal junction. After clean dissertion Heamatoma of the scalp beneath the injury was found extending on the temporalis muscle fracture of the parietal and temporal bone seen. Huge subdural Heamatoma 10 x 4 x 2 inside seen. It was ante-mortem caused by heavy object. 8) Sutured laceration 4 x 1 x on the left partial region and simple in nature and ante-mortem this witness deposed that injury No. 7 is grievous which resulted due to fracture of skull with intra cranial hemorrhage, caused after the death of the person. Injury No. 7 is sufficient in the ordinary course of nature to cause death of a person. Ex. P10 is the post mortem certificate issued by him. This witness deposed in his cross examination that injury Nos. Injury No. 7 is sufficient in the ordinary course of nature to cause death of a person. Ex. P10 is the post mortem certificate issued by him. This witness deposed in his cross examination that injury Nos. 7 and 8 could not have been caused by a fall. ( 16 ) P. W. 12 is the Circle Inspector of Police, who deposed about the details of investigation and filing of the charge sheet. P. W. 14 is the Sub Inspector of Police, who also deposed about the details of investigation. It is not doubt true that there is some delay in dispatch of FIR. The Investigating Officer had not deposed anything about the said delay. In Sushil v. State of U. P. , (supra) the Apex Court at para No. 7 observed as under: learned Counsel for the appellants, appearing for the two appellants, namely, Tapeshwar and Ram Niwas has submitted that the FIR is said to have been recorded on 15. 08. 1980 at 8. 10 A. M. but it was dispatched on 16. 08. 1980 and no explanation for this delay has been offered by the prosecution which provides legitimate basis for suspicion that the FIR was recorded much later that the stated date and hour with a view to introduce improvements with distorted version of the occurrence. It was submitted that this delay may be taken into consideration to see whether the investigation is fair or not because the delay in dispatching of the FIR is a factor to be seriously reckoned while appreciating the prosecution evidence. First of all, it may be pointed out that no such contention was raised either before the Trial Court or before the High Court for delay in dispatching the FIR and its alleged probably consequences. No question was also put to the investigating officer Bhim Singh, P. W. 6 as to the cause of delay, who was the best person to explain the short delay in dispatching the FIR. It is no doubt true that section 157 Cr. P. C. requires the sending of report forthwith to the Magistrate empowered to take cognizance of the offence, but every delay in sending the FIR is not fatal to the prosecution case unless some prejudice is shown to have been caused to the accused by such delay (See State of U. P. v. Gokaran ( AIR 1985 SC 131 ). P. C. requires the sending of report forthwith to the Magistrate empowered to take cognizance of the offence, but every delay in sending the FIR is not fatal to the prosecution case unless some prejudice is shown to have been caused to the accused by such delay (See State of U. P. v. Gokaran ( AIR 1985 SC 131 ). In the present case there is no material to indicate that there was any deliberate delay on the part of the investigating office in dispatching the report. This apart, no prejudice is shown to have been caused to the accused persons by the said delay. On the contrary it is abundantly clear from the evidence on record that after the FIR Ext. Ka-4 was recorded the Police Inspector Bhim Singh P. W. 6 immediately recorded the statement of the informant in the police station itself and at 8. 30 A. M. proceeded to the place of occurrence along with the A. S. I. Om Dutt Tyagi who prepared the Panchanama of the dead body at the spot, recorded the statement of the witnesses, prepared the site plan Ext. Ka-9 and seized the blood stained and simple earth from the place of occurrence as well as pajama and shoes of the deceased. He then made a search of the accused persons but they could not be traced out. These facts are not disputed and the same have been corroborated by the evidence of witnesses. It is thus clear that on 15. 08. 1980 the Police Inspector Bhim Singh and his A. S. I. Om Dutt Tyagi both remained busy in the investigation at the place of occurrence and thereafter in sending the dead body to the District Hospital for post mortem. In view of the facts and circumstances stated above and after going through the prosecution evidence which we shall discuss herein-in-after we are satisfied that the report was lodged on the date and time mentioned in the FIR Ext. Ka-4 and the sending of report by the prosecution was not delayed in order to introduce some improvement, embellishment or distorted version of the occurrence. ( 17 ) LEARNED counsel for the appellants no doubt made elaborate submission on the aspect that there is some doubt or suspicion whether Ex. Ka-4 and the sending of report by the prosecution was not delayed in order to introduce some improvement, embellishment or distorted version of the occurrence. ( 17 ) LEARNED counsel for the appellants no doubt made elaborate submission on the aspect that there is some doubt or suspicion whether Ex. P1 was presented as alleged by the prosecution or it was subsequently brought on record to suit the convenience of the version of the prosecution. Same comment was also made relating to the character of the deceased and possibility of certain other enemies being cause for the death of the deceased. P. W. 1 is the brother of the deceased. It is no doubt true that when only relative witnesses were examined, their evidence has to be scrutinized with care and caution. But the evidence of relative witnesses cannot be discarded on the ground of relationship only. In this regarded, strong reliance was placed on Barati v. State of U. P. (supra) and Shamu Balu Chaugule v. State of Maharashtra (supra ). ( 18 ) IT is true that in Ex. P1 only goddali had been referred to and it is also true that there is some variation in relation to the injuries, that two injuries caused by A1 and A2 and one more injury as deposed by P. W. 1. It is also true that the medical evidence does not disclose an injury caused by the axe as such. Submissions at length were made by the learned counsel for the appellants that this improved version had been introduced by the prosecution and wooden part of the axe was deposed at a subsequent stage only to explain the injuries and it is also doubtful whether the fatal injury, injury No. 7 was caused either by A1 or A2 and even on a careful scrutiny of the evidence of P. Ws. 1 to 4 it is not clear who had caused the fatal injury, injury No. 7. Same comment was made on the evidence of P. W. 2 also on the ground that she is also a relative witness. But the learned Judge placed reliance on the evidence of P. W. 2 on the ground that she is a disinterested witness. Even if she is a relative witness, he evidence cannot be totally discarded. Same comment was made on the evidence of P. W. 2 also on the ground that she is also a relative witness. But the learned Judge placed reliance on the evidence of P. W. 2 on the ground that she is a disinterested witness. Even if she is a relative witness, he evidence cannot be totally discarded. In the overall facts and circumstances, on appreciation of the whole material, on the ground that introducing wooden part of the axe at the subsequent stage having mentioned as goodali in Ex. P1, this court is of the opinion that the total version of the prosecution as such cannot be disbelieved. However, in view of the doubt created whether A1 or A2 caused the fatal injury, this Court is of the considered opinion that in the light of the evidence of P. W. 1, who had also seen the chasing and in the absence of clear evidence attributing specific overt acts to the accused and taking into consideration the evidence of P. Ws. 1, 2, 11 and 13, the conviction recorded as against A1 under Section 304-II IPC as such cannot be sustained and the same is hereby set aside. But, however, in view of the clear and direct evidence of P. Ws. 1 and 2, corroborated by the evidence of P. W. 3 and also the prior incident which had been well established, the incident as such cannot be doubted. ( 19 ) HENCE, A1 also is found guilty for the offence under Section 324 IPC. As far as A2 and A3 are concerned they are also found guilty for the offence under Section 324 IPC. Taking the over all facts and circumstances into consideration, A1, A2 and A3 are accordingly found guilty for the offence under Section 324 IPC and in view of the evidence of P. Ws. 1 and 2, A1 and A2 are sentenced to undergo Rigorous Imprisonment for a period of one year and A3 is sentenced to undergo Rigorous Imprisonment for a period of nine months. This would be the just punishment in the facts and circumstances of the case. ( 20 ) ACCORDINGLY, the Criminal Appeal is allowed to the extent indicated above. In all other aspects, the findings are hereby confirmed. It is brought to the notice of this Court that the appellants had already served a portion of the sentence. This would be the just punishment in the facts and circumstances of the case. ( 20 ) ACCORDINGLY, the Criminal Appeal is allowed to the extent indicated above. In all other aspects, the findings are hereby confirmed. It is brought to the notice of this Court that the appellants had already served a portion of the sentence. It is needless to say that they are entitled to set off in accordance with law and to serve the rest of the sentence if any to be served.