Research › Search › Judgment

Andhra High Court · body

2008 DIGILAW 44 (AP)

Shaik Khasim v. State of A. P.

2008-01-25

B.PRAKASH RAO, L.NARASIMHA REDDY

body2008
JUDGMENT: Sri LNR, J K. Sreenivasa Rao, who is also known as China Sreenu, was working as a muta worker in the mango market at Vijayawada. On 03.04.2004 he was murdered. A complaint submitted by his mother has set the process of law, in motion. The case was taken up as S.C.No.248 of 2004 by the Court of Session, Metropolitan Division, Vijayawada. A1 to A6 were tried for the offence of committing the murder of K. Sreenivasa Rao. Through its judgment, dated 07.11.2005, the trial Court acquitted A5 and A6, but convicted A1 to A4 for the offences under Sections 302 and 341 IPC and sentenced them to undergo imprisonment for life and one month simple imprisonment respectively. This appeal is filed by A1 to A4. 2. The mother of the deceased i.e., P.W.1 filed a complaint- Ex.P1, dated 03.04.2004, stating that her son was employed as a muta coolie in the mango market and that he used to go to duty at 4.30 AM daily in the morning, and come back by 9.30 PM, depending on the extent of work. On the date of complaint, she is said to have received information from P.W.4, a relative to her, to the effect that she has seen Sreenivasa Rao lying on the Yerrakatta bridge by sustaining severe injuries. P.W.4 is said to have known the information through her son Shankar, who was not examined. It was mentioned that P.W.1 went to the spot on receiving information and the persons who gathered there have informed that A1 to A4 have beaten the deceased till death with bamboo sticks, and fled away from the scene. While indicating the motive for the offence, she has also stated that there were disputes between A1 and the deceased for the past several months. 3. During the course of investigation, the police examined several witnesses. P.Ws.2 and 3 said to have accompanied the deceased while returning home and that both of them have seen A1 to A6 attacking the deceased. It was alleged that A1 to A4 were in the habit of committing thefts in the market and teasing the woman workers. The deceased and others are said to have admonished the appellants to desist from such activities and thereupon, the accused have developed grudge against the deceased. Relevant charges on these lines were framed. All the accused pleaded not guilty. The deceased and others are said to have admonished the appellants to desist from such activities and thereupon, the accused have developed grudge against the deceased. Relevant charges on these lines were framed. All the accused pleaded not guilty. The trial Court found that the charges against A1 to A4 were proved. 4. Sri C. Padmanabha Reddy, learned senior counsel for the appellants submits that the so called eyewitnesses, namely, PWs.2 and 3 were examined by the police more than a month after the incident and the tenor of their evidence clearly discloses that they are planted witnesses. He contends that there is substantial variation between what was stated in Ex.P1 and what was deposed by P.W.1. Learned counsel further submits that the trial Court had stretched its reasoning to connect A1 to A4 to the offence too long. He placed reliance upon certain decided cases. 5. Learned Additional Public Prosecutor, on the other hand, submits that the eyewitness, namely, P.W.2, has clearly stated that he has seen the accused attacking the deceased and that though P.W.3 was declared hostile, necessary information, which accorded with the statement recorded from him under Section 161 Cr.P.C., was elicited in the cross-examination on behalf of the State. He further submits that many other witnesses did not report to the police or share the information with others soon after the occurrence due to fear of retaliation from the accused, and at any rate, no question was put to the Investigating Officer about the delay in recording the statements. He submits that the eyewitness account is supported by the circumstantial evidence and no interference is warranted with the judgment rendered by the trial Court. 6. P.W.1, the mother of the deceased, is not an eye witness to the occurrence and her evidence is relevant only to the extent that she submitted a complaint- Ex.P1, with necessary information that was received by her, about the offence. P.Ws.2 and 3 were also employed as muta coolies in the mango market and they are eyewitnesses. P.W.4 is a relative of P.W.1, who passed on the information about the occurrence. P.W.5 is another muta coolie in the fruit market and he spoke to the fact that the accused were indulging in theft and teasing of women; and that they have been warned and admonished by several workers, including the deceased. P.W.4 is a relative of P.W.1, who passed on the information about the occurrence. P.W.5 is another muta coolie in the fruit market and he spoke to the fact that the accused were indulging in theft and teasing of women; and that they have been warned and admonished by several workers, including the deceased. P.W.6 is a fruit merchant in the same market and he too stated that the accused used to commit thefts and resort to illegal activities in the fruit market. The witness to inquest panchanama, namely, P.W.7, was declared hostile. P.W.8 is a mediator for arrest of all the accused. P.W.9 is the photographer and P.W.10 is the owner of a cycle shop, from whom the cycle was said to have been hired by the deceased. This witness has turned hostile. The witness for inquest of the dead body, namely, P.W.11 also turned hostile. The doctor, who conducted autopsy over the dead body, was examined as P.W.12. P.W.13 is the Sub-Inspector of Police, who registered the crime and P.W.14 is the C.I. of police, who conducted the investigation. 7. One of the contentions advanced on behalf of the accused is that the evidence of P.Ws.2 and 3- eye witnesses cannot be taken into account, in view of the fact that they have been examined by the police nearly 40 days, subsequent to the occurrence. The record, no doubt, discloses that the incident occurred on 03.04.2004. Placing reliance upon the judgments of the Supreme Court in HASAN AHMAD MAI ISHA v. STATE OF GUJARAT1; GANESH BHAVAN PATEL v. STATE OF MAHARASHTRA2; STATE OF U.P. v. MUNDRIKA3; MUTHU v. STATE OF KARNATAKA4, the learned senior counsel submits that such a delay is almost fatal to the case of the prosecution or at least to the extent of the concerned witnesses. 8. We are conscious of the fact that the witnesses, who have any information about the occurrence of incident, must be examined at the earliest possible time and any delay in this regard, is likely to be used in knitting a suitable version. At the same time, one cannot ignore the fact that every possible information about the occurrence of an incident cannot be expected to pour instantaneously. The investigation is a long drawn process. At the same time, one cannot ignore the fact that every possible information about the occurrence of an incident cannot be expected to pour instantaneously. The investigation is a long drawn process. During the course of investigation, not only knew facts would come to light, but the doubt expressed about complicity of persons at the initial stages, get cleared. This, naturally would result, in implication of new individuals and release of the existing ones, from the list of accused depending on the facts. Some times, the provisions of law, cited in the FIR, need to be altered, not only at the stage between the occurrence and filing of the charge sheet, but even subsequent thereto. Sometimes, the Court may also direct the Investigating Officer to take steps in a different direction, as provided for, under Section 319 of Cr.P.C. 9. Whenever any delay is noticed in examination of a witness by the police, and the accused feel that such delay is fatal, the corresponding suggestion has to be made to the Investigating Officer. It is only when the explanation given by the Investigating Officer is not satisfactory, necessary inference needs to be drawn. This situation, however, cannot be compared to the delay in filing of complaint or registration of the case. 10. In SUNIL KUMAR v. STATE OF RAJASTHAN5, the Supreme Court dealt with this aspect of the matter and held that unless a question was put to the Investigating Officer in this regard, the delay even if noticed, cannot be treated as fatal. The relevant portion reads as under; "So far as the delayed recording of statement of the witnesses is concerned, here again no question was put to the investigating officer specifically as to why there was delay in recording the statement. On the contrary, the witnesses themselves have indicated as to why there was delay. The plea of the appellants in this regard, therefore, has no substance." 11. In the instant case, we have carefully gone through the evidence of P.W.14, the Investigating Officer. No suggestion was made to him about the delay in examining P.Ws.2 and 3. Another factor, which impresses us, is that the said witnesses have stated that out of fear of retaliation from the accused, they have not informed to anyone or the police about their witnessing the occurrence. No suggestion was made to him about the delay in examining P.Ws.2 and 3. Another factor, which impresses us, is that the said witnesses have stated that out of fear of retaliation from the accused, they have not informed to anyone or the police about their witnessing the occurrence. We are, therefore, not inclined to accept the contention advanced by the learned senior counsel, in this regard. 12. It is, no doubt, true that in Ex.P1, P.W.1 mentioned the names of A1 to A4 as the persons, who have beaten her son till death. It is also true that P.W.1 did not mention any specific source of information in this regard. She, however, stated that the persons who gathered at the place of occurrence have revealed the said names. Further, without any further corroboration, mere suspicion against A1 to A4 would not have led to their conviction. Therefore, it needs to be seen as to whether the prosecution has adduced any reliable evidence, in this regard. 13. P.Ws.2 and 3 are also employed as muta coolies in the mango market along with the deceased. Both of them have stated that themselves and the deceased were returning to their houses, after the work and when they reached Yerrakatta bridge, the accused have beaten the deceased with sticks and fled away. The cycle, which the deceased has taken along with him, was recovered at the scene of occurrence. The presence of P.Ws.2 and 3 at the scene of occurrence is natural and cannot be doubted at all. It was not even suggested that they are not employed as coolies in the market. 14. P.W.4 was no doubt, declared hostile. After she deposed certain facts in the chief-examination, it fumbled later. This, however, was neutralized in the cross-examination by the Public Prosecutor. She has virtually admitted whatever was contained in the statement recorded from her under Section 161 Cr.P.C. She has also furnished the reason for her attempt to retract from the statement, Z.e., fear of retaliation by the accused. All the witnesses referred to above have stated the names of A1 to A4. In the cross-examination of these witnesses, nothing was elicited to doubt their truthfulness. 15. All the witnesses referred to above have stated the names of A1 to A4. In the cross-examination of these witnesses, nothing was elicited to doubt their truthfulness. 15. Two other witnesses, namely, P.Ws.5 and 6, who were muta coolies and fruit merchants respectively in the same market, have stated that the accused were resorting to theft and other unsocial activities and that they have been warned by the deceased and some other persons. The evidence of these witnesses suggests that the accused had grouse against the deceased for repeatedly warning them and send a message for interference with their activities would be a costly affair. 16. We are convinced that the evidence of P.Ws.2 and 3 is acceptable. It has already been pointed out that there is nothing unnatural in the evidence of P.Ws.2 and 3 and it is supported by the other circumstantial evidence, such as the evidence of P.Ws.5 and 6. Learned senior counsel is correct in his submission that if the evidence of these witnesses is to be taken into account, the conviction against A1 cannot be sustained. P.Ws.2 and 3 have named all the accused in their evidence in chief-examination. In his cross-examination, P.W.2 categorically admitted that he did not observe A1 at the scene of offence. Though such contradiction was not elicited from P.W3, we are of the view that the benefit of doubt needs to be extended to A1. 17. For the foregoing reasons, we allow the appeal in part, by setting aside the conviction and sentence recorded in S.C.No.248 of 2004, on the file of the Court of Session, Metropolitan Division, Vijayawada, dated 07.11.2005, against A1, but confirming the conviction and sentence recorded against A2, A3 and A4. A1 shall be released forthwith, unless he is required in any other case.