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2007 DIGILAW 718 (AP)

Deepak Bahadur v. State of Andhra Pradesh

2007-07-31

G.CHANDRAIAH, T.MEENA KUMARI

body2007
Mrs. MEENA KUMARI, J:- Since all these criminal appeals arise out of a single judgment in Sessions Case No.480 of 2004 on the file of III Additional Sessions Judge, Karimnagar, they are disposed of jointly. 2. Criminal Appeal No.809 of 2005 has been filed by the accused No.3 and Criminal Appeal No. of 2005 has been filed by accused No.1 and Criminal Appeal No.1126 of 2005 has been filed by accused No.2 in S.C. No.480 of 2004 on the file of the learned III Additional Sessions Judge, Karimnagar against the conviction and sentence imposed vide judgment dated 14.2.2005 convicting and sentencing the accused Nos. 1 to 3 to undergo imprisonment for life each and to pay a fine of Rs.500/in default to suffer simple imprisonment for one month by each accused for the offence under Section 302 read with Section 34 of the Indian Penal Code. 3. The case of the prosecution in brief is as follows: That on 7.10.2003 at about 8 p.m. near Quarter No.C-43 FCI, Godavarikhani, the accused Nos.l to 3 in furtherance of their common intention killed the deceased Guru Bahadur Singh by beating him with stones on his head, on suspicion that the deceased got illicit intimacy with one Swapna, wife of Deepak Thapa, elder brother of accused No.3. 4. Chitla Rajanna and Moram Ramaswamy are Home Guards and they were patrolling in the said area and they observed the accused Nos.1 to 3 killing the deceased and immediately caught hold of the accused No.1 and other accused namely accused Nos.2 and 3 ran away. Then they brought him to the quarters or Asst. Administrative Officer, FCI, from there they telephoned to Patel Malla Reddy, A.S.1. of Police, who came and took the accused No.1 to the police station. Chula Rajanna presented a written complaint Ex.P.1, the S.1. of Police (pW.16) issued FIR. Inspector of Police (pW.19) took up the investigation, conducted scene of offence panchanama, held inquest over the dead body and seized incriminating material from the scene of offence. Dr. A. Narendra Babu (pW.14) conducted autopsy over the dead body. Thereafter, accused Nos.2 and 3 were arrested, at their instance their blood stained clothes were seized in the presence of mediators and sent them to RFSI. After completion of investigation, the charge-sheet is filed against the accused Nos.1 to 3. 5. Dr. A. Narendra Babu (pW.14) conducted autopsy over the dead body. Thereafter, accused Nos.2 and 3 were arrested, at their instance their blood stained clothes were seized in the presence of mediators and sent them to RFSI. After completion of investigation, the charge-sheet is filed against the accused Nos.1 to 3. 5. The Judicial Magistrate of First Class, Godavarikhani took the cognizance of Crime No.101 of 2003 and registered the same as P.R.C. No.46 of 2003, furnished all the copies of documents to the accused Nos.l to 3 as required under Section 207 of Cr.P.C. and committed the case to the Sessions Division, Karimnagar on 22.6.2004. The learned Sessions Judge, Karimnagar registered the P.R.C. No.46 of 2003 as S.C. No.480 of 2004 and made over the same to the learned III Additional Sessions Judge, Karimnagar for disposal according to law. 6. Charge under Section 302 read with Section 34 of Indian Penal Code was framed, read over and explained to the accused in Hindi, for which the accused Nos.1 to 3 pleaded not guilty and claimed for trial. 7. To prove its case, the prosecution has examined PW s.1 to 19 and Exs.P.1 to P.17 were marked, M.O.S.1 to 11 were marked. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with the incriminating evidence spoken to by the PWs.1 to 19 against them and they denied the same. The learned Sessions Court having satisfied with the evidence adduced by the prosecution convicted and sentenced accused Nos.1 to 3 to undergo imprisonment for life each and to pay a fine of Rs.500/- in default to suffer simple imprisonment for one month by each accused for the offence under Section 302 read with Section 34 of Indian Penal Code. 8. The learned Counsel for the appellants-accused argued that there are number• of circumstances to indicate that the presence of PWs.1 and 2 at the scene of offence is highly doubtful and the learned Judge failed to observe that PWs.1 and 2 are Home Guards and they are under the control of PWs.3, 16 and 19. He further submitted that the evidence of PWs.l and 2 is not corroborative. The evidence of PW.19 regarding the arrest of accused Nos.2 and 3 is also not corroborated. He further submitted that the evidence of PWs.l and 2 is not corroborative. The evidence of PW.19 regarding the arrest of accused Nos.2 and 3 is also not corroborated. The learned Judge erred in not attaching any importance to the delay in lodging First Information Report and delay in reaching First Information Report to Magistrate. The medical evidence is not corroborated with the ocular evidence. The learned Sessions has not taken into consideration that PW.1, PW.5, PW.6 and PW.8 turned hostile and did not support the case of the prosecution. 9. The learned Counsel appearing for the appellant-accused No.1 vehemently argued that in the absence of specific overt acts attributed to accused No.1 and also the failure of the prosecution to prove the specific injuries caused by each of the accused, accused No.1 cannot be convicted under Section 302 of Indian Penal Code. The learned Counsel relying on the decision of the Supreme Court repot in Baul v. The State of UP., AIR 1968 SC 728 , submitted that the prosecution has failed to prove the participation of accused No.1 to prove that he alone is responsible for the death of the deceased by giving any fatal blow which caused the death of the deceased and, therefore, he cannot be convicted under Section 302. The learned Counsel for the appellant-accused No.1 also relied on the decision of the Supreme Court reported in Radhey Shyam v. State of UP., AIR 1999 SC 1461 . 10. On the other hand, the learned Public Prosecutor argued that the evidence on record does to show that the accused are responsible for causing the death of the deceased and as such no interference is warranted with the order of conviction and sentence passed by the Court below. 11. P.W.1 is the Home Guard, who is working at Ramagundam Unit since 1992. He deposed that he joined duty on 7.10.2003 and posted to patrolling duty on the same day along with another Home Guard, Ramaswamy P.W.2. At about 8 p.m., when they were doing patrolling at FCI Township near Quarter No.C-43 they found three persons and when they questioned, they tried to fled away, then they chased and caught hold of one person i.e. accused No.1. When enquired accused No.1, he disclosed that he killed one Guru Bahadur Singh as Al had intimacy with one of the relatives. When enquired accused No.1, he disclosed that he killed one Guru Bahadur Singh as Al had intimacy with one of the relatives. He further deposed that they brought accused No.1 to the house of AAO., Krishna Kumar in a jeep and made a phone call to AS.I., Malla Reddy, who came and then took the accused No.1 to the police station. He lodged Ex.P.1 complaint to the police. In the cross-examination nothing has been elicited. This witness was declared hostile and the learned Public Prosecutor cross-examined him wherein he stated that he noticed three persons beating another person with stones and when they questioned them they ran away and they chased and caught hold of A1. 12. PW.2 deposed that at about 8 p.m. himself and P.W.1 came to C-type quarters in FCI on patrolling duty and they witnessed one person lying on the ground and three persons are beating him near C-43 quarter. When they questioned they ran away and they chased and caught hold of Al and the remaining two persons fled away. The person lying on the ground sustained head injury and was in a pool of blood and found to be dead. When questioned, Al informed that he along with A2 and A.3 beat the deceased on the ground that the deceased got illicit intimacy with the wife of his brother and killed him. P.W.2 also more or less deposed on the same lines. According to him, P. W.1 and himself caught hold of accused No.1 and brought him to the house of A.A.O., Krishna Kumar. P.W.l informed about the incident to Krishna Kumar and there they telephoned to P.S., NTPC and by 8.30 p.m. A.S.I., Mall reddy came there and then they took Al to the police station where P.W.1 gave Ex.P.1 complaint. 13. P.W.3 is the Assistant Inspector of Police, who deposed that on receiving information that three persons beat and killed a person, he rushed to the C-5 Quarter i.e. of AO. Krishna Kumar and found accused No.1 was in the custody of P.Ws.1 and 2. He further deposed that he took PWs.1 and 2 and accused No.1 to the spot and found a dead body in a pool of blood and stones and the clothes of the deceased were stained with blood. Krishna Kumar and found accused No.1 was in the custody of P.Ws.1 and 2. He further deposed that he took PWs.1 and 2 and accused No.1 to the spot and found a dead body in a pool of blood and stones and the clothes of the deceased were stained with blood. He further deposed that on enquiry with the accused No.1, accused No.1 narrated the incident and he handed over accused No.1 to the Sub-Inspector of Police, who recorded his statement and P.W.11odged Ex.P.1 complaint with the Sub-Inspector of Police. 14. PWA is the Assistant Administrative Officer in F.C.l., Godavarikhani. He deposed that on the date of the incident he opened the doors and found PWs.l and 2 on patrolling duty in II shift from 2 p.m. to 10 p.m. and at about 8 to 8.15 p.m. some body knocked his doors and he opened the doors and found PWs.l and 2, who told him that near Qr. No.C-43 murder has taken place and they caught one person out of the three persons, they shown accused No.1 to him and later they informed to the AS.I. P.W.3, who came in a jeep and took P.Ws.1 and 2 along with accused No.1 in a jeep. He further deposed that accused Nos.1 to 3 are stating the dock witness identified by accused No.1 and police examined him and recorded his statement. 15. PWs.5, 6 and 8 have turned hostile and they did not support the case of the prosecution. P.W.7 is a panch witness who has put his signature on Ex.P.4 panchanama. The evidence of P.Ws.9 and 10 did not support the case of the prosecution. They stated about the purchasing of wine by accused Nos.1 to 3. PW.11 is a panch witness, who was present at the time of seizure of M.Os.2, 3, 6 and 7 and for the inquest report Ex.P.4. 16. P.W.12 is one of the panch witnesses, who deposed that accused Nos.2 and 3 led himself and police officials to an, electric pole near a temple of F.E.I. and produced M.O.8 bloodstained lalchi, M.O.9 one kaki colour bloodstained shirt and EX.P.6 is relevant portion in the confession of accused No.2, EX.P.7 is the relevant portion in the confession of accused No.3 and Exs.P.8 and 9 are seizure panchanamas of M.Os.8 and 9. 17. PW.13 is a photographer, who deposed that Ex.P.10 is the photographs corresponding negatives. 18. 17. PW.13 is a photographer, who deposed that Ex.P.10 is the photographs corresponding negatives. 18. P.W.14 is a Doctor, who conducted the autopsy over the dead body of the deceased and issued post-mortem report under EX.P.11 and who found the following injuries: (1) One lacerated wound 2 inches long, 3 in number around the left eye; (2) Lacerated wound 2 inches long below the left eye; (3) Lacerated wound 1 inch long over right cheek; (4) Crush injury of the right ear; (5) Lacerated wound 3 inches x bone depth over right parietal region; (6) Lacerated wound 2 inches x bone depth over right temporal region; (7) Contusion 2 x 2 around the neck; (8) Contusion 2 x 2 centre upper part of chest; (9) Fracture 4 inches long over right parietal bone; (10) Fracture 3 inches long over right temporal bone; and (11) Fracture 8, 3rd and 4th right on the ribs. 19. The doctor opined that the injuries are ante mortem in nature and have caused by blunt weapon and opined that the death of the deceased was due to haemorrhage: due to head injury and Ex.P.11 is postmortem examination report issued by him. 20. P.W.15, the doctor who examined and treated the accused No.2 has found one lacerated wound and one abrasion and issued Ex.P.12 wound certificate. 21. P.W.16 is the Sub-Inspector of Police, who deposed that on receipt of Ex.P.1 complaint he registered a case in Crime No.101 of 2003 under Section 302 read with Section 34 of Indian Penal Code and issued EX.P.13 First Information Report. He further deposed that he recorded the statements of P.Ws.1 to 3 and recovered M.O.I from accused No.1 under Ex.P.5. 22. PW.17 is a panch witness for Ex.P.8 and P.9 panchnamas under which M.Os.8 and 9 were seized. 23. P.W.18 is also one of the panch witness for recovery of M.O.1 under Ex.P.5. 24. P.W.19 is the Inspector of Police, who has done the investigation and who spoke about the seizure of bloodstained clothes and seized the same from accused No.1. He deposed that he prepared rough sketch of the scene of offence and recorded the statements of P.Ws.9 and 10, and he further deposed that he sent M.O.8. to R.F.S.L., Warangal and EX.P.17 is F.S.L. report. He deposed that he prepared rough sketch of the scene of offence and recorded the statements of P.Ws.9 and 10, and he further deposed that he sent M.O.8. to R.F.S.L., Warangal and EX.P.17 is F.S.L. report. He also spoke that he arrested the accused Nos.2 and 3 on 9.10.2003 and he further deposed that the accused No.2 has produced bloodstained shirt the same was seized under EX.P.8. Accused No.3 also has shown the M.O.9. He deposed that after completion of investigation he filed the charge-sheet against the accused Nos.1 to 3 for the offence under Section 302 read with Section 34 of Indian Penal Code. 25. We have perused the entire record place before this Court. The entire case rests on the extra-judicial confession made by accused No.1 to P.Ws.1 and 2. 26. Though P.W.1 declared hostile, to the extent his evidence is corroborated by P.W.2 and P.W.3, the same can be taken into consideration. The evidence of P.W.1 goes to show that the accused No.1 has confessed before him that he has killed the deceased Guru Bahadur Singh. P.W.2 categorically deposed that three persons were beating a person lying on the ground, that P.W.1 and himself chased the said persons and caught hold of Al and the remaining persons ran away. Al informed them that he along with A2 and A3 beat the deceased and killed him on the ground that the deceased developed illicit intimacy with the wife of his brother. After that, they brought Al to the house of P.WA and from there they took Al to the police station. The evidence of P.WA who happened to be the Asst. Administrative Officer in F.C.I.,. Godavarikhani goes to show that the accused No.1 was brought to his house by P.W.2 and he telephoned to the Assistant Sub-Inspector of Police, P.W.3, who came and seen and taken the P. W s.1 and 2 along with accused No.1. The evidence of P .WA corroborates the evidence of P.Ws.1 and 2 that they apprehended A.1 and brought him to the house of P.WA and thereafter took him to the police station. The evidence of PWs.1 and 2, which has been supported by the evidence of P.WA clearly goes against A.I. Therefore, the presence of A.I at the scene of offence at 8.00 p.m., on the date of offence is corroborated by the evidence of PWs.1, 2 and PW.4. 27. The evidence of PWs.1 and 2, which has been supported by the evidence of P.WA clearly goes against A.I. Therefore, the presence of A.I at the scene of offence at 8.00 p.m., on the date of offence is corroborated by the evidence of PWs.1, 2 and PW.4. 27. However, a perusal of the entire evidence goes to show that except the statement made by accused No.1 to PW.1 and PW.2 that accused Nos.2 and 3 have also participated in the commission of the offence, there is no evidence to connect them with the commission of murder of Guru. Bahadur Singh. The evidence of PWs.l, 2 and 4, which remained uncontroverted, goes to show that an extra-judicial confession, has been made by A.1 to PWs.1 and 2 to the effect that he killed the deceased along with two others. The statement of accused No.1 to PW.1 and PW.2 that he has killed the Guru Bahadur Singh, is not controverter and the evidence of PWs.1 and 4 cannot be brushed aside. However, there is no evidence available that accused Nos.2 and 3 were also found in the company of accused No.1 killing the said Guru Bahadur Singh. Therefore, in the absence of any other clinching evidence available to speak about the presence of accused Nos.2 and 3, they are entitled to benefit of doubt. 28. The evidence ofPW.12 who acted as a panch witness goes to show that accused Nos.2 and 3 stated before him that they will show an axe, but the axe is not actually recovered. Further, a perusal of the charge goes to show that there is no mention about any overt acts committed by anyone of the accused persons by beating the deceased with an axe. Under the above circumstances, the evidence ofPW.12 with regard to the recovery made on the confession of accused Nos.2 and 3 cannot be relied upon. The evidence of PW.19 goes to show that accused Nos.2 and 323 were arrested on 9.10.2003. But, in the absence of any other evidence available to prove that the accused Nos.2 and 3 were also present at the spot along with accused No.1, we are of the opinion that accused Nos.2 and 3 shall be given benefit of doubt. The evidence of PW.19 goes to show that accused Nos.2 and 323 were arrested on 9.10.2003. But, in the absence of any other evidence available to prove that the accused Nos.2 and 3 were also present at the spot along with accused No.1, we are of the opinion that accused Nos.2 and 3 shall be given benefit of doubt. Therefore, the findings arrived at by the trial Court against accused Nos.2 and 3 are perverse and cannot be sustained and liable to be set aside, in the absence of any evidence establishing their presence along with accused No.1. 29. But, however, the evidence of P.W.1 and P.W.2 is consistent with regard to the extra judicial confession made by accused No.1 to P.W.1 and P.W.2 and which is corroborated by the evidence of P.W.A, Assistant Administrative Officer who deposed that accused No.1 was brought to his house and he telephoned to P.S., N.T.P.C. and the Asst. Sub-Inspector of Police, NTPC, PW.3, took him in a jeep. The evidence of P.W.3 and P.WA goes to show the presence of accused No.1 at the house of P.WA and that accused No.1 was caught hold of by P.W.1 and surrendered him to the police by P.W.I. The evidence of P.W.2 goes to show that he has gone to the spot along with accused No.1. 30. Therefore, from the above, it is clear that the case of the prosecution that accused No.1 made extra-judicial confession to P.W.1 and P.W.2 corroborative and further corroborated by the evidence of P.WA and the subsequent recoveries made in the presence of witnesses by the official witnesses i.e., Investigation Officer also established that A.1 has participated in the commission of offence. There is also no explanation from Al as to why he was there at the place of offence when he was apprehended by PWs.1 and 2. 31. Under the above circumstances, in the absence of any evidence available to disprove the presence of accused No.1 on the spot, we are of the opinion that though accused No.1 may not alone be responsible for killing Guru. Bahadur Singh, but his extra-judicial confession made to PWs.1 and 2 establish that he has participated in the commission of the offence along with others. Since the presence of A2 and A.3 is not established, we have to see whether Al is liable for punishment under Section 302 IPC or for some other offence. Bahadur Singh, but his extra-judicial confession made to PWs.1 and 2 establish that he has participated in the commission of the offence along with others. Since the presence of A2 and A.3 is not established, we have to see whether Al is liable for punishment under Section 302 IPC or for some other offence. Ex.P.11 post-mortem certificate issued by P.W.14 shows that the deceased was inflicted with as many as 11 injuries and he opined that the deceased died due to haemorrhage due to head injury. As already stated, there are no specific overt acts attributed to AI. In the charge also no specific overt acts are attributed to A1. 32. The evidence of P.W.2 goes to show that he has witnessed when they are on partrolling duty on the fateful day, they saw three persons are beating a person who was lying on the ground at Quarter No.C-43 and when he tried to catch, two persons fled away and caught accused No.1. Therefore, it is to the case of the prosecution that accused No.1 alone is responsible for the death of the deceased or that accused No.1 has caused the vital blow on the body of the deceased resulting in his death. In the absence of evidence, it cannot be said that the accused No.1 alone is responsible for causing death of, the deceased. But, however, as already held, the presence of accused No.1 spoken to by PWs.l and 2 that they caught hold of accused No.1 and the extra-judicial confession made to P.W.1 and also the evidence of P.Ws.2 and 4 establish that the accused No.1 has also voluntarily caused grievous injuries to the deceased and as such it can be said that he is liable for punishment under Section 325 Indian Penal Code. Therefore, the conviction and punishment imposed by the trial Court for the offence punishable under Section 302 Indian Penal Code cannot be sustained and are liable to be set aside as there is no evidence as such available that accused No.1 alone is responsible for the death of the deceased. 33. Therefore, the conviction and punishment imposed by the trial Court for the offence punishable under Section 302 Indian Penal Code cannot be sustained and are liable to be set aside as there is no evidence as such available that accused No.1 alone is responsible for the death of the deceased. 33. Under the above circumstances, it has to be held that the prosecution has utterly failed to prove the case against accused No.1 under Section 302 of Indian Penal Code and the case of accused No.1 fall under Section 325 of Indian Penal Code and he is liable for punishment under Section 325 of Indian Penal Code. Accordingly, the punishment imposed by the learned trial Court on accused NO.1 under Section 302 read with Section 34 of Indian Penal Code have to be modified to that of punishment under Section 325 of Indian Penal Code and he is liable to be convicted for three years after giving set off to the period of remand already undergone by him. 34. In the result, the Criminal Appeal Nos.809 and 1126 of 2005 are allowed and the conviction and sentence imposed by the learned III Additional Sessions Judge, Shobha Devi and another (Supreme Court) 269 Karimnagar in Sessions Case No.480 of 2004 dated 14.2.2005 against the accused Nos.2 and 3 to suffer imprisonment for life for the offence punishable under Section 302 read with Section 34 of Indian Penal Code is set aside and the accused Nos.2 and 3 shall be released forthwith, if they are no longer required to be detained in any other case and the Crl. A. No.1111 of 2005 is partly allowed and the conviction and sentence imposed by the learned III Additional Sessions Judge; Karimnagar in Sessions Case No.480 of 2004 dated 14.2.2005 against the accused No.1 to suffer imprisonment for life for the offence punishable under Section 302 read with Section 34 of Indian Penal Code is modified to Section 325 of Indian Penal Code and accused No.1 is convicted and sentenced to suffer imprisonment for three years for the offence punishable under Section 325 of Indian Penal Code and the accused No.1 shall be released after completion of the above said punishment duly giving set off to the period of remand already undergone by accused No.1, if he is not required in any other case.