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2008 DIGILAW 369 (AP)

Shaik Chanda v. State of Andhra Pradesh

2008-06-13

A.GOPAL REDDY, R.KANTHA RAO

body2008
JUDGMENT: (Per Hon'ble Mr Justice R. Kantha Rao) 1. The sole accused Shaik Chand was put up for trial before the IV Additional Sessions Judge (Fast Track Court), Karimnagar in Sessions Case No. 478 of 2004 on the allegation of committing offences punishable under Sections 302 and 307 IPC. At the conclusion of the trial he was found guilty for both the offences and was sentenced to imprisonment for life and to pay a fine of Rs.500/- for the offence under Section 302 IPC. He was also sentenced to undergo Rigorous Imprisonment for a period of five years and to pay a fine of Rs.500/- for the offence under Section 307 IPC. Both the substantive sentences were directed to run concurrently. 2. Aggrieved by the said order of conviction and sentence, the appellant preferred this appeal. 3. The prosecution case in a nutshell is as follows:- 4. P.W-1 Mohammed Manjoor Ahmed, P.W-4 Mohammed Maksood Ahmed and the deceased Md. Mazar Ahmed are brothers. P.W-1 was running a pan shop near the main gate of RTC bus station Karimnagar. Ankoos who is the brother of Shaik Chand, the appellant in this case is a fruit vendor and he was running a fruit stall by the side of the pawn shop of P.W-1. One month prior to the incident Md. Mazar Ahmad, the brother of P.W-1 advanced hand loan of Rs.5,000/- to Ankoos as the amount was not repaid. Md. Mazar Ahmad went to the house of Ankoos situated in Subashnagar in Karimnagar town and enquired about him. On coming to know that Ankoos was not at the house he was returning back, the appellant Shaik Chand who was present at the house became furious about Md. Mazar Ahmad coming over their house accosted him as to why he came to their house. Md. Mazar Ahmad replied that he came in connection with the issue of hand loan. On that the appellant slapped Md. Mazar Ahmad. Md. Mazar Ahmad returned back and informed the same to his brother P.W-1. 5. While so at about 9.30 p.m., on the same day, P.W-1 and his brother Md. Mazar Ahmad closed the pan shop and were about to start their scooter to go to their house, in the meanwhile the appellant came there by abusing them in filthy language raising the issue of hand loan and caught hold of the collar of Md. While so at about 9.30 p.m., on the same day, P.W-1 and his brother Md. Mazar Ahmad closed the pan shop and were about to start their scooter to go to their house, in the meanwhile the appellant came there by abusing them in filthy language raising the issue of hand loan and caught hold of the collar of Md. Mazar Ahmad and pushed him. Thereafter he stabbed Md. Mazar Ahmad on the chest and back with a knife. When P.W-1 tried to rescue the deceased, he also stabbed P.W-1 on the left side below the chest and back of the chest. P.Ws-2, 3, 5, 6 viz., Gangishetti Rajaiah, Md. Kaleem Pasha @ Gore, Thoufiq Ahmed Khan, Madarapu Narayan Rao and others witnessed the incident tried to rescue P.W-1 and the deceased. 6. Immediately P.W-2 shifted both P.W-1 and the deceased in an auto to Government Hospital, Karimnagar, but the deceased Md. Mazar Ahmad succumbed to the injuries on the way to the hospital. P.W-2 admitted P.W-1 in Government Hospital, Karimnagar. 7. On receiving information about the incident, P.W-16 Sri Ch. Mallaiah, the S.I. of Police, Karimanagar I Town Police Station rushed to the hospital and recorded the statement of P.W-1. He returned to the police station and basing on the statement of P.W-1 registered a case in Cr. No. 138 of 2003 under Sections 302 and 307 IPC, thereafter he rushed to the scene of offence observed the same, prepared the observation report, and the rough sketch of the scene of offence. 8. Subsequently P.W-17 Sri P. Venugopal Rao, the Inspector of Police took up investigation, held inquest over the body of the deceased, dispatched the body of the deceased to Government Hospital, Karimnagar for the purpose of conducting postmortem examination. He recorded the statements of witnesses during the course of inquest. P.W-14 Dr. P. Mallesh, Civil Assistant Surgeon, Government Headquarters Hospital, Karimnagar conducted autopsy over the body of the deceased. 9. On 27.03.2003 the appellant surrendered before the Additional Judicial Magistrate of I Class, Karimnagar. On that P.W-17, the Inspector of Police filed a requisition before the Magistrate to handover the appellant to police custody for three days which was considered and the appellant was given to police custody for the purpose of interrogation. 9. On 27.03.2003 the appellant surrendered before the Additional Judicial Magistrate of I Class, Karimnagar. On that P.W-17, the Inspector of Police filed a requisition before the Magistrate to handover the appellant to police custody for three days which was considered and the appellant was given to police custody for the purpose of interrogation. In the course of interrogation in pursuance of the disclosure statement made by the appellant, P.W-17 recovered M.O-1 blood stained knife, M.O-8 blood stained white polyester shirt, M.O-9 blood stained pant, M.O-10 leather cheppals in the presence of P.Ws-12 and 13 viz., Akula Raju Vemula Venkata Swamy, the mediators and the said material objects were produced by the appellant from the bushes nearby Manchiryal road. P.W-17 seized the said material objects under the cover of Ex.P-19 panchanama in the presence of mediators. 10. After completing investigation, P.W-17 filed charge sheet against the appellant in the court of Judicial Magistrate of I Class, Karimanagar who committed the case to the Court of Session. 11. In the course of the trial before the IV Additional Sessions Judge (Fast Track Court), Karimnagar, the prosecution in order to prove its case examined P.Ws-1 to 17, marked Exs.P-1 to P-20 and M.Os-1 to 10. The appellant did not propose to examine any defence witnesses. His version is one of total denial. 12. P.W-1 is an injured eye witness. He is no other than the brother of the deceased. P.Ws-2 to 7 viz., Gangishetti Rajaiah, Md. Kaleem Pasha @ Gore, Mohammed Maksood Ahmed, Thoufiq Ahmed Khan, Madarapu Narayan Rao, Sankapalli Raj Kumar are eye witnesses to the occurrence. The learned IV Additional Sessions Judge upon considering the material facts spoken to by the eye witnesses to the occurrence and the medical evidence forth coming in this case held that the prosecution established the guilt of the appellant beyond reasonable doubt and thus convicted and sentenced the appellant to punishment as mentioned above. 13. Among the witnesses, P.Ws-1 and 4 are the brothers of the deceased whereas the remaining are independent witnesses. 13. Among the witnesses, P.Ws-1 and 4 are the brothers of the deceased whereas the remaining are independent witnesses. P.W-2 though treated by the prosecution as hostile stated in his deposition before the trial Court that the appellant and the deceased quarreled in front of the hotel and went inside the gate of the bus stand by quarrelling and on that P.W-1 also went there, P.W-2 tried to separate them and thereafter went to his shop and fifteen minutes thereafter he heard the cries of P.W-1. It is also his version that subsequently he found P.W-1 and the deceased before the hotel and then he brought an auto and removed them to the hospital. 14. P.W-2 was declared hostile by the prosecution, since he did not speak about the actual occurrence in which the deceased and P.W-1 received injuries. However his evidence is unshattered on the aspect that there was a quarrel between the deceased and the appellant and in the course of the said quarrel only the deceased and P.W-1 received injuries. 15. Whereas P.W-3 deposed before the trial Court that there was a quarrel between the appellant and the deceased. The deceased threw a stone against the appellant and on that the appellant stabbed the deceased on the left side of the stomache and on the left side of the back with knife. He also stated that when P.W-1 interfered, the appellant also stabbed P.W-1 on the left side of the stomache and on his back. This witness was also declared hostile by the prosecution only on the ground that he stated that the deceased pelted stone against the appellant. But the evidence of P.W-3 also the same as that of the other witnesses in regard to the actual occurrence in which the deceased and P.W-1 received injuries. 16. P.W-4 is the elder brother of the deceased and he is not a direct witness to the occurrence. While he was in his office he received a phone call from his wife to the effect that the appellant stabbed the deceased and P.W-1 and both of them were shifted to Government Hospital, Karimnagar. 17. P.W-5 completely turned hostile and only stated that he saw some persons gathered at the scene of offence and thus his evidence is not useful to the prosecution. 18. 17. P.W-5 completely turned hostile and only stated that he saw some persons gathered at the scene of offence and thus his evidence is not useful to the prosecution. 18. P.W-6 an independent witness has categorically spoken to the fact of his witnessing the quarrel between the appellant and the deceased, he and some others present at the scene of offence trying to pacify the quarrel and in the meanwhile the deceased stabbing the deceased with knife on the left side of his chest and also on the back and also stabbing P.W-1 with knife on the left side of his stomache and on the back when he interfered. He totally supported the version of the prosecution. 19. P.W-7 also has categorically spoken to the same facts deposed by P.W-6 and this witness also totally supported the version of the prosecution. 20. In this appeal it has been contended on behalf of the appellant that there are some discrepancies in the version of eye witnesses in regard to the overt acts and also in regard to the actual venue of offence, the testimony of eye witnesses comes into conflict with medical evidence and the motive suggested by the prosecution is very weak and it is not believable that the appellant might have been prompted by the trivial motive to the extent of killing the deceased and attempted to kill P.W-1. 21. We have thoroughly considered the aforesaid contentions urged on behalf of the appellant and in the light of the evidence forthcoming in this case. 22. In this case P.W-1 and the other eye witnesses have been running shops in the vicinity of the scene of offence. The shops are at the RTC bus station, Karimnagar. P.W-1 stated in his deposition that the incident took place in front of his pawn shop whereas P.W-2 deposed that the incident took place inside the gate of the bus stand and P.W-3 deposed that the incident took place near his hotel and P.Ws-6 and 7 deposed that the incident took place inside the compound wall of the bus stand. 23. Basing on the above mentioned minor variations in regard to the scene of offence, the learned Counsel appearing for the appellant would submit that in view of the discrepancies in the evidence of eye witnesses as to the scene of offence, their evidence should be disbelieved. 23. Basing on the above mentioned minor variations in regard to the scene of offence, the learned Counsel appearing for the appellant would submit that in view of the discrepancies in the evidence of eye witnesses as to the scene of offence, their evidence should be disbelieved. We see no force in the contention put forth by the learned Counsel. The venue of offence is admittedly in the vicinity of RTC bus station, Karimnagar town where the shops of P.Ws-1 to 3, 6 and 7 are situate. It is also not disputed that the shops are very near to each other. The presence of eye witnesses in this case at the scene of offence in view of their avocation near the bus stand can be considered to be normal and natural. It is not the case wherein the venue of offence is totally shifted from the actual place on account of the discrepancies in the version of the eye witnesses. Since the offence according to the eye witnesses took place in the vicinity of the gate of the RTC bus station, Karimnagar town, the minor discrepancies as to where actually the incident started where it came to an end does not matter much. Therefore the presence of the eye witnesses at the time of the incident and their witnessing the incident cannot be doubted and absolutely there is no merit in the contention put forth on behalf of the appellant that on account of the discrepancies in the evidence of P.Ws-1 to 3, 6 and 7 who are the eye witnesses to the occurrence, their entire version should be discarded. Their version is consistent as to the venue of offence and also the manner in which the incident supposed to have taken place and the overt acts committed by the appellant. 24. It has also been contended on behalf of the appellant that the injuries mentioned in Ex.P-21 injury certificate issued by P.W-14 the autopsy surgeon do not tally with the overt acts spoken to by the eye witnesses. 25. The evidence of P.W-14 discloses that on examination he found incised wound on the left side of the back and another incised wound on the left side abdomen of P.W-1 and he issued Ex.P-21 injury certificate to that effect. 25. The evidence of P.W-14 discloses that on examination he found incised wound on the left side of the back and another incised wound on the left side abdomen of P.W-1 and he issued Ex.P-21 injury certificate to that effect. He also admitted that he inadvertently did not mention the injury at the abdomen in the medical certificate and mentioned in the medical certificate as incised wound on the left chest instead of on the back of the left chest. He brought the case sheet and the same was marked as Ex.P-21 wherein the injuries are mentioned corresponding to the version of P.W-1 and other eye witnesses. Therefore it can be considered that the discrepancies occurred in Ex.P-21 injury certificate when compared to Ex.P-20 case sheet due to inadvertence of P.W-14, the autopsy surgeon. 26. However it is settled preposition of law that normally when there is a conflict between ocular evidence and medical evidence, the ocular evidence will prevail. The only exception is when the medical evidence forth coming is of such a nature which rules out the possibility of the happening of the incident as spoken to by the eye witnesses, then the medical evidence assumes significance leading to a conclusion that the eye witnesses did not witness the occurrence actually. 27. But in the instant case the medical evidence does not totally come into conflict with the version of eye witnesses. The discrepancy pointed out by the learned Counsel appearing for the appellant is a minor discrepancy which may occur due to various reasons such as lapse on the part of the eye witnesses or the autopsy surgeon. This is not a case wherein the medical evidence totally rules out the possibility of the happening of the incident as spoken to by the eye witnesses. As stated by us earlier, the presence of the eye witnesses at the place of occurrence is quite normal and natural. Their evidence indicates that they actually witnessed the incident and on account of the minor discrepancy or omission it is not possible to discard the testimony of eye witnesses which is credible and trustworthy. The cumulative effect of the account of eye witnesses clearly establishes that the appellant caused injuries with a knife to the deceased as well as P.W-1. This fact remains unshattered from the version of all the eye witnesses who spoke about the incident. The cumulative effect of the account of eye witnesses clearly establishes that the appellant caused injuries with a knife to the deceased as well as P.W-1. This fact remains unshattered from the version of all the eye witnesses who spoke about the incident. Therefore their version will prevail over medical evidence and the minor inconsistency pointed out on behalf of the appellant is of no consequence. Therefore in our considered view it is not possible to discard the version of eye witnesses basing on the minor inconsistency pointed out by the defence. 28. In this connection we would like to refer to a decision rendered by the Supreme Court in the case of Vijay Shankar Shinde Vs. State of Maharashtra1 wherein it was held as follows: "That the trial Court was not justified in brushing aside the evidence of an injured eye witness on the ground that he may have reason to falsely implicate the appellant. P.Ws-11, 12 and 13 were cross-examined at length but nothing substantial could be elicited to destroy the credibility of their version. As a matter of fact, the injured person who is examined as a witness lends more credence, because normally he would not falsely implicate a person thereby protecting the actual assailant." 29. Coming to the case on hand P.W-1 is an injured eye witness. He is no other than the brother of the deceased. We cannot expect that he would leave the real culprit who stabbed his brother to death and also attempted on his life by causing stab injuries with knife. This apart there is abundant evidence of other eye witnesses as to the incident in question. The evidence of all the witnesses clearly indicate that the appellant herein stabbed the deceased to death and also attempted on the life of P.W-1 by causing stab injuries on the vital parts of the body. Thus the substratum of the version of eye witnesses is not shattered either in the course of the cross-examination or in view of the surrounding circumstances. Thus the evidence of eye witnesses in this case is highly convincing and reliable. 30. As regards the motive, it is true that according to the prosecution and the evidence of P.W-1 the incident arose out of a trivial issue relating to lending of an amount of Rs.5,000/- by the deceased to the brother of the appellant and its repayment. Thus the evidence of eye witnesses in this case is highly convincing and reliable. 30. As regards the motive, it is true that according to the prosecution and the evidence of P.W-1 the incident arose out of a trivial issue relating to lending of an amount of Rs.5,000/- by the deceased to the brother of the appellant and its repayment. There are many instances wherein ghastly offences committed on account of trivial issues. Further this is a case based on direct evidence and the above mentioned eye witnesses have spoken to the occurrence of the incident and the same was believed by the trial Court as well as this Court. In a case based on circumstantial evidence, motive assumes great importance whereas in a case based on direct evidence, the witnesses speak about the actual occurrence and the same is believed the motive loses its significance. Therefore the contention urged, that the motive suggested is very weak is of no consequence in view of the highly reliable and trustworthy account of eye witnesses. 31. For the foregoing reasons in our considered view, the learned trial Court rightly placed reliance on the evidence of eye witnesses and his conclusion that the prosecution proved that the appellant stabbed the deceased to death and attempted to kill P.W-1 by causing stab injuries on the vital parts of the body with knife is based on reliable evidence and the conviction and sentence recorded by the trial Court against the appellant for the offences under Sections 302 and 307 of IPC do not call for any interference in this appeal and they are confirmed. The appeal is, therefore, dismissed.