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2004 DIGILAW 1360 (AP)

Shaik Anwar Basha v. State Of A. P.

2004-11-11

P.S.NARAYANA

body2004
( 1 ) ACCUSED (A-1) in S. C. No. 614 of 1997 on the file of the IV Addl. Sessions Judge, kurnool, preferred the present appeal, aggrieved by the conviction and sentence imposed on him for the offence punishable under Section 325 IPC. ( 2 ) THE case of the prosecution is that the deceased in this case by name Shaik karimulla P. W. 1-Shakeel Ahamed, P. W. 4- ahmed Ameer and P. W. 5 Basheer Ahmed being the students of College at Kurnool are close associates and friends, whereas A-1 in this case also was a student of B. A. , final year in Osmania College, Kurnool, residing at door No. 5/62-B, Dr. Gaffar Street, I Town, kurnool. During the year 1997, P. W. 5- basheer Ahamed having appeared for intermediate final examinations, failed in the said course, whereby A-1 Sk. Anwar Basha met the father of P. W. 5 by name Syed buranuddin Ahamad of Hajarath Jee Nagar, kurnool and informed him that his son p. W. 5 failed in Intermediate due to his moving in bad company of P. W. 1 and others who are rowdy elements and advised him to keep his son away to the said persons. Thereupon, the father of P. W. 5 told the information to him and chastised for his moving with bad elements. P. W. 5 in tune stated this information to his friends-P. Ws. 1, 4 and the deceased Karimulla. Being enraged by this, on 13-09-1997 evening, P. Ws. 1, 4 and the deceased Karimulla caught A-1 when he was present at Hazarath Jee Nagar, Kurnool and questioned him about his bad propoganda with the father of P. W. 5 and at that juncture P. W. 1 and the deceased- karimulla beat A-1 with hands and warned him. This is clear from the unchallenged evidence of P. Ws. 4 and 5. ( 3 ) WHILE so, it is the case of the prosecution that A-1 being enraged by the assault committed by the deceased and P. W. 1, gathered A-2 to A-8 with an intention to beat the deceased and P. W. 1, went in two autorickshaws towards Balaji Nagar, Kurnool on 14-09-1997 and found the deceased karimulla and P. W. 1 present at a distance of 20 ft. to Lavanya Kirana Shop, belonging to p. W. 3 at about 6. to Lavanya Kirana Shop, belonging to p. W. 3 at about 6. 15 p. m. and after getting down from the autos, they encircled both the deceased and P. W. 1. P. W. 1 having apprehended danger in the hands of the accused, some how escaped and ran away from the scene of offence, whereas all the accused began to beat the deceased karimulla with hands and legs as witnessed by P. Ws. 2, 3 and 9. The accused having beaten the deceased indiscriminately with hands and legs, left the place whereby the deceased fell unconscious on the road. Thereafter P. Ws. 2 and 9 took the injured-Karimulla to Govt. General Hospital, Kurnool and admitted him. While undergoing treatment Karimulla died because of the multiple injuries, at about 8. 30 p. m. on the same day, i. e. , on 14-09-1997 in Government general Hospital, Kurnool, and that the investigation conducted by the Inspector of police, Taluk Circle disclosed that all the accused have committed offence under sections 147, 302 read with 149 IPC. ( 4 ) THE learned I Addl. Judicial Magistrate of First Class committed the case to the court of Sessions. The learned Sessions judge made over the case to the IV Addl. Sessions Judge, Kurnool for disposal of the same. The learned IV Addl. Sessions Judge recorded the evidence of P. Ws. 1 to 12 and documents Exs. P-1 to P-7 besides M. Os. 1 to 3 were marked. The learned IV Addl. Sessions Judge recorded acquittal as against a-2 to A-8. However, the learned Judge found A-1 guilty of the offence punishable under Section 325 IPC. Aggrieved by the said order, the appellant-A-1, has preferred the present criminal appeal. ( 5 ) SRI Praveen Kumar, learned counsel appearing forthe appellant-A-1 would submit that on appreciation of the evidence of p. W. 2 and also the medical evidence available on record and also taking into consideration the finding recorded by the court below, it is definitely doubtful whether the ingredients of Section 325 IPC, as such are attracted against the appellant-A-1. He would further submit that in the light of the medical evidence at the best inasmuch as the evidence is of general in nature and that since the specific overtacts had not been attributed to the specific accused, the same may fall under Section 323 IPC definitely, but not under Section 325 IPC. He would further submit that in the light of the medical evidence at the best inasmuch as the evidence is of general in nature and that since the specific overtacts had not been attributed to the specific accused, the same may fall under Section 323 IPC definitely, but not under Section 325 IPC. The learned counsel made it clear that the submission is being made in alternative, in case the Court comes to the conclusion that the findings are to be confirmed. ( 6 ) PER contra, the learned Addl. Public prosecutor had taken this court through the evidence available on record and would justify the conviction recorded under Section 325 ipc. ( 7 ) HEARD both the counsel. ( 8 ) P. WS. 2, 3 and 9 are the eye-witnesses, who were examined to speak about the assault of the deceased by all the accused. P. W. 3 to some extent, no doubt, corroborated the evidence of P. W. 2 and 9, but, however, turned hostile at the end, and denied having witnessed the offence. ( 9 ) P. W. 1 in his evidence deposed that he knows the names of A-1 and A-8 but he does not know the names of other accused and he also knows the other accused by faces as they used to come to play ground in Balaji nagar and that all the accused are the close associates of A-1. He further deposed that he knows the deceased-Karimulla, who is son of Mohmmad Hanif and that himself, karimulla and one Basheeruddin Ahmed ameer are close associates and friends, since they studied in the same college. He deposed that the deceased-Karimulla died on 14-09-1997 at about 8. 30 p. m. in the government Hospital, Kurnool, due to the injuries received by him. He further deposed that since one of their friends Basheeruddin failed in I ntermediate during the year 1997, in that connection, A-1 approached the father of Basheeruddin and told him as if basheeruddin failed Intermediate exams only because of moving in their bad company and that himself and his friends are rowdy elements. On 13-09-1997 at about 6. 00 p. m. himself, the deceased-Karimulla and basheeruddin Ahmed Ameer met A-1 at hajarat Jee Nagar and questioned him as to what business he got to canvas bad things against them and beat A-1 with hands, warned him and came back. On 13-09-1997 at about 6. 00 p. m. himself, the deceased-Karimulla and basheeruddin Ahmed Ameer met A-1 at hajarat Jee Nagar and questioned him as to what business he got to canvas bad things against them and beat A-1 with hands, warned him and came back. On the next day i. e. , on 14-09-1997 at about 6. 30 p. m. when himself and the deceased-Karimulla were present near Lavanya Kirana shop, two auto rickshaws came and stopped before them and that in all 10 people including A-1 and a-8 got down from the said auto rickshaws and surrounded them. P. W. 1 further deposed that he apprehended danger and ran away from the place. One hour later when he was at his house somebody informed him that the deceased-Karimulla was beaten and that he was taken to the Government Hospital, kurnool. This witness was cross-examined. During the course of cross-examination, while denying the other suggestions, P. W. 1 stated that he was not present when the police conducted inquest over the deadbody of the deceased-Karimulla and that the police never called him at any point of time. He further stated that he did not give the names of A-2 to A-7 and stated that the names of A-1 and a-8 alone. He also stated that since A-8 is an auto driver, he had no prior acquaintance with him. ( 10 ) P. W. 2, who is the crucial witness, deposed about the details of the alleged incident. He deposed that on the fateful day, about 10 persons came in the auto rickshaws including A-1 and A-8 and surrounded the deceased-Karimulla and P. W. 1. Then p. W. 1 escaped from the place and ran away. The persons, who got down from the said auto including A-1 and A-8, beat the deceased-Karimulla with hands and legs indiscriminately and thereafter left the place. In the course of the said attack, A-1 pressed the throat of the deceased-Karimulla with his leg, for which the deceased fell down. He further deposed that immediately after the incident, they proceeded towards the injured-Karimulla quickly and admitted him in the government Hospital, Kurnool, with the assistance of P. W. 9-Thaheer, who was also present at that time. One Ramana also witnessed the incident. This witness specifically deposed that he knows A-1, as he is a resident of his locality. He further deposed that immediately after the incident, they proceeded towards the injured-Karimulla quickly and admitted him in the government Hospital, Kurnool, with the assistance of P. W. 9-Thaheer, who was also present at that time. One Ramana also witnessed the incident. This witness specifically deposed that he knows A-1, as he is a resident of his locality. ( 11 ) P. W. 3 who is said to be the eyewitness to the incident, no doubt supported the version of the prosecution to some extent. But this witness was declared hostile. When p. W. 3 was cross-examined by the prosecution, he stated that it is not true to say that he got acquaintance with A-1 and that he stated before police as in Ex. P-1 about the name of P. W. 1 and that he also gave the registration number of one of the auto rickshaws and that he has now suppressed the truth being afraid of the accused. ( 12 ) P. W. 4 also deposed about questioning and confronting of A-1 by P. W. 1 and the deceased in respect of the prior to the incident. He also deposed about beating and warning a-1, not to behave in such manner in future, by P. W. 1 and the deceased. ( 13 ) P. W. 5 deposed that he studied upto intermediate and in the year 1997 he appeared final Inter and failed. Himself, p. Ws. 1 and 4 and the deceased-Karimulla were moving as close friends and that A-1 is known to him. When he failed Intermediate, a-1 approached his father and informed him that as he (P. W. 5) is moving in bad company of P. W. 1 and for that reason only he failed in the intermediate examinations. This witness also deposed about the other details regarding the said aspect. ( 14 ) P. W. 6, who is said to be the brother of the deceased-Karimulla deposed that p. W. 3 came and informed that his brother was attacked by some people and he was taken to the Government Hospital, Kurnool by P. W. 2 and others. He further deposed that immediately, himself and his family members rushed to the Government hospital, Kurnool. At that time, the deceased-Karimulla was unconscious and that he died on 14-09-1997 at about 8. He further deposed that immediately, himself and his family members rushed to the Government hospital, Kurnool. At that time, the deceased-Karimulla was unconscious and that he died on 14-09-1997 at about 8. 30 p. m. ( 15 ) P. W. 7 is the Auto driver and no doubt was declared hostile. During the course of cross-examination, he denied Ex. P-2- statement. ( 16 ) P. W. 8 is the Principal of Swamy vivekananda High School, Balaji Nagar, kurnool. He deposed that he was present at the time of inquest over the deadbody of the deceased-Karimulla. Ex. P-3 is the inquest report. He signed on Ex. P-3, as a mediator. The police seized the clothes on the deadbody of the deceased, which were marked as m. Os. 1 to 3. They opined that the deceased died of injuries. ( 17 ) P. W. 9 had specifically deposed that about five persons arrived at the scene of offence in two auto rickshaws and on seeing them, P. W. 1 ran away from the place. The said people, started beating the deceased-Karimulla for which the deceased fell down. Then he raised alaram and reached to the scene of offence. Except A-1, he could not identify the other persons. This witness was cross-examined at length. ( 18 ) P. W. 10, is the Professor, Department of Forensic Medicine, Kurnool. He deposed that he conducted autopsy over the deadbody of the deceased-Karimulla and found the following external ante-mortem injuries. (1) Contusion on left side fore head below the hair line 4 x 3 cm red in colour. (2) Small abrasions 3 in number on the toes of right dorsum of foot 4 x 2 cm, 3 x 2 cm, 4 x 2 cm. Red in colour. (3) Abrasions two in number on dorsum of right middle toe 3 x 2 cm, 2 x 1 cm red colour. (4) Contusions three in number on the front and middle of chest red in colour 4 x 2 cm, 3 x 2 cm, 5 x 3 cm, after relecting the skin small blood clots found in the subcutaneous tissue underneath and fracture of chest bone (sternum) in its middle side to side. (4) Contusions three in number on the front and middle of chest red in colour 4 x 2 cm, 3 x 2 cm, 5 x 3 cm, after relecting the skin small blood clots found in the subcutaneous tissue underneath and fracture of chest bone (sternum) in its middle side to side. (5) Contusion of the left side scalp layer 10 x 6 cm on parietal area red in colour after reflection of the scalp contusion and blood clots were found on the surface of the brain tissues (subdural) with mid brain haemorrhages. (6) Contusion and blood clots over the deep muscles of the neck over the cervical vertebra on the front and with fracture and dislocation of the 5th cervical vertebra. He deposed that the deceased appeared to have died due to shock as a result of multiple injuries. The death occurred at 8. 30 p. m. on 14-09-1997, in the Government general Hospital, Kurnool. Injuries 1 to 4 might have been caused by fall on rough surface. Injury No. 6 can be caused by application of pressure on the neck region. Ex. P-5 is the Post-mortem certificate. ( 19 ) P. W. 11-Sub-Inspector of Police deposed that he recorded Ex. P-4-statement of P. W. 9 and registered the same as a case in crime No. 107 of 1997. ( 20 ) P. W. 12-LNSPECTOR of Police deposed that he visited the scene of offence, recorded the statements of the witnesses and prepared rough sketch-Ex. P-7. He further deposed that he was present at the time of inquest held over the deadbody of the deceased. On 20-09-1997, he arrested A-1 to A-8 and sent for remand. After completion of investigation he filed the charge-sheet. ( 21 ) THE learned IV Addl. Sessions Judge, on appreciation of the evidence available on record, taking into consideration the evidence of P. Ws. 2 and 9, in particular well supported by the medical evidence, arrived at a conclusion that A-1 is guilty of the offence punishable under Section 325 IPC and has given benefit of doubt to the other accused. ( 22 ) ON perusal of the material available on record, it is no doubt true that the medical evidence is not clear and except the general allegation of the overtacts attributed to A-1, no specific overt act is attributed to him. ( 22 ) ON perusal of the material available on record, it is no doubt true that the medical evidence is not clear and except the general allegation of the overtacts attributed to A-1, no specific overt act is attributed to him. It is also true that there is clear evidence relating to the participation of A-1 and there can be no doubt, whatsoever, about the presence of a-1 at the scene of offence especially in the light of the evidence of P. Ws. 2 and 9 well corroborated by the evidence of other witnesses, in relation to certain other aspects. It is also true that the learned IV Addl. Sessions judge recorded the findings in detail and had arrived at a conclusion that the requisite intention of committing murder had not been established. The way in which the prosecution witnesses have deposed would go to show that definitely the intention of A-1 was not with a view to totally do away with the life of the deceased. Therefore, rightly it was held by the learned Judge, in the light of the medical evidence available on record and in view of the fact that all the injuries specified in the medical evidence are simple in nature and specifically it was not shown that the injuries caused can be attributed to the overtacts of A-1 only. Taking into consideration the acquittal recorded by the learned Judge as against the other accused, this Court is of the considered opinion that this is a case falling under Section 323 IPC- punishment for voluntarily causing hurt and not under Section 325 I PC-punishment for voluntarily causing grievous hurt. When there are multiple injuries and when there is doubt about the specific overtacts and when all the other accused were acquitted it could not be just to convict A-1 alone under Section 325 ipc for causing the alleged grievous hurt. Hence the conviction and sentence imposed for the offence punishable under Section 325 ipc is hereby set aside. However, in the light of the above facts and circumstances of the case and also especially in the light of the medical evidence and the evidence of p. Ws. 2 and 9, the appellant-A-1 is convicted for the offence under Section 323 IPC and sentenced to imprisonment for a period of which he had already undergone and also to pay a fine of Rs. 1000. 00. 2 and 9, the appellant-A-1 is convicted for the offence under Section 323 IPC and sentenced to imprisonment for a period of which he had already undergone and also to pay a fine of Rs. 1000. 00. It is brought to the notice of this Court that the fine amount of rs. 3000. 00 was paid by the appellant-A-1. It is needless to say that the appellant-A-1 is entitled to refund of the rest of the fine of rs. 2000. 00. ( 23 ) ACCORDINGLY, the criminal appeal ia partly allowed to the extent indicated above.