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2014 DIGILAW 208 (AP)

Shaik Yekiyaz v. State of Andhra Pradesh

2014-02-11

L.NARASIMHA REDDY, M.S.K.JAISWAL

body2014
Judgment : L. Narasimha Reddy, J. The sole appellant – A1 and his father - A2 were tried by the Court of V Additional Sessions Judge, Rayachoty, in S.C.No.339 of 2007, for the offence of committing murder of one Mr.Shaik Hazi Masthan and causing grievous injuries to PW.3 – Shaik Mahaboob Saheb, on 03.10.2007 at Rayachoty. After conducting full-fledged trial, the trial Court acquitted A2, but convicted A1 for the offences punishable under Sections 302 and 324 I.P.C. Sentence of imprisonment for life was imposed for the offence under Section 302 I.P.C., and that of two years RI was imposed for the offence under Section 324 I.P.C. Both the sentences were directed to run concurrently. Hence, this appeal. The case of the prosecution in brief, was this: The deceased - Shaik Hazi Masthan was a Muthavalli at Masapet, Rayachoty. A1, who is a fruit vendor on a four-wheel cart, used to park it at the threshold of the Mosque every time, when he came to offer prayers, and that the Muthavalli warned him, on several occasions. On one occasion, the Muthavalli has forcibly taken away the cart, and on that, A1 got enraged and made an attempt even to attack the Muthavalli, by throwing a stone. On 03.10.2007, between 9.00 and 9.30 P.M., prayers have taken place in the Mosque, in which A1 and his father - A2 also took part. The brother of the deceased, by name, Shaik Maqbool, filed a complaint, Ex.P.1, before the Police Station, Rayachoty, narrating the enmity between Muthavalli and A1, and that between 9.00 and 9.30 P.M., on that day, when the prayers were going on, A2 instigated A1 to attack the Muthavalli, and that A1, who was in the first row, came to the third row, where the Muthavalli was also offering prayers, took a stone, which was lying by the side, and hit him on the head. The Muthavalli cried on receiving injuries, and immediately PW.1 shifted the injured – Muthavalli, to hospital, where he was declared dead. Attempts made by other persons in the Mosque to nab A1 and A2 failed. With these and other allegations, PW.1 accused A1 and A2 of committing murder of Muthavalli. PW.10, the Investigating Officer (IO) is also said to have received intimation of death - Ex.P.9, from the hospital, and soon thereafter, registered Crime No.215 of 2007 and commenced the investigation. Attempts made by other persons in the Mosque to nab A1 and A2 failed. With these and other allegations, PW.1 accused A1 and A2 of committing murder of Muthavalli. PW.10, the Investigating Officer (IO) is also said to have received intimation of death - Ex.P.9, from the hospital, and soon thereafter, registered Crime No.215 of 2007 and commenced the investigation. He caused the scene of offence panchanama drawn, inquest and post-mortem conducted. He has also examined various listed witnesses and filed a charge sheet. The trial Court framed the following charges against A1 and A2: “1. That A.1 of you on 03.10.2007 at about 9.00 P.M., in the Thakva Mosque situated in Masapeta of Rayachoty Town did commit murder by intentionally and knowingly caused the death of the deceased Shaik Haji Masthan at the instigation of A.2, by hurling a boulder on the back side of the head of the deceased and that you thereby committed an offence punishable under Section 302 of Indian Penal Code and within my cognizance. 2. That A2 of you on the same day, time and at the same place as mentioned in the charge No.1, you instigated A.1 to murder the deceased and in common intention of which viz., A.1 caused the death of the deceased Shaik Haji Masthan by hurling a boulder on the back side of the head of the deceased which you knew likely to be committed an offence in prosecution of the common intention of the said assembly you are thereby U/s 34 of the Indian Penal Code guilty of committing the said offence punishable U/s 302 read with 34 of the Indian Penal Code and within my cognizance. 3. That A.1 of you on the same day, time and at the same place as mentioned in the charge No.1 voluntarily caused hurt to Shaik Haji Masthan and that you thereby committed an offence punishable U/s 324 of the Indian Penal Code and within my cognizance. 4. 3. That A.1 of you on the same day, time and at the same place as mentioned in the charge No.1 voluntarily caused hurt to Shaik Haji Masthan and that you thereby committed an offence punishable U/s 324 of the Indian Penal Code and within my cognizance. 4. That A.2 of you on the same day, time and at the same place as mentioned in the charge No.1 were members of an unlawful assembly as in prosecution of the common intention of which viz., A.1 voluntarily caused hurt to Shaik Mahaboob Basha by means of falling a boulder caused an injury to his left leg which you knew likely to be committed an offence in prosecution of the common intention of the said assembly you are thereby U/s 34 of the Indian Penal Code guilty of committing the said offence punishable U/s 324 r/w 34 of the Indian Penal Code and within my cognizance.” As observed earlier, the trial Court convicted A1 and acquitted A2. Sri G. Vijaya Saradhi, learned counsel for the accused, submits that Ex.P.1 submitted by PW.1, the brother of the deceased, itself is a cooked up version and even that did not contain the names of any other persons as eyewitnesses, whereas in the course of trial PWs.3 and 4 were cited as eyewitnesses. He further submits that Ex.P.1, as well as the statement recorded from PW.1, under Section 161 Cr.P.C., are silent about many aspects that were spoken to by PW.1 in the Court. He contends that, while in the chief-examination PW.1 stated that the attack on his brother took place when all the devotees were in ‘Rooku’ position, he stated in the cross-examination that the attack was when the deceased was in ‘Sajda’ position. Learned counsel further submits that, while PW.1 stated that his clothes were stained with the blood of his brother and the police have seen the same, PW.10 - IO, in the cross-examination, stated that he did not notice any blood stains on the clothes of PW.1. He points out that the failure to examine LWs.6 to 8, who were said to be in the company of A1 at the Mosque, and failure to examine the priest, who conducted the prayers at the relevant point of time, would certainly lead to an inference referable to Section 114 of the Indian Evidence Act. He points out that the failure to examine LWs.6 to 8, who were said to be in the company of A1 at the Mosque, and failure to examine the priest, who conducted the prayers at the relevant point of time, would certainly lead to an inference referable to Section 114 of the Indian Evidence Act. Learned Public Prosecutor for the State submits that the eyewitness account of PW.1 is consistent throughout and failure to mention the names of the eyewitnesses in the FIR is not at all fatal. She contends that the discrepancies pointed out by the learned counsel for A1 are too trivial, in nature, and they do not have the effect of weakening the case of the prosecution. She submits that PW.3 is an injured eyewitness and nothing serious was elicited from that witness to doubt his presence at the scene, and witnessing the occurrence. A1 and his father – A2 were tried for the offences punishable under Sections 302 and 324 I.P.C. On behalf of the prosecution, PWs.1 to 10 were examined and Exs.P.1 to P.13 were filed. Mos.1 to 10 were taken on record. The prosecution pleaded existence of enmity between A1, on the one hand, and the deceased, on the other hand, in the context of parking of a push cart, at the entrance of the Mosque. Though it may appear to be trivial, let us proceed on the assumption that there existed at least disharmony between the accused and the deceased to the extent of motive. The incident is said to have taken place right in the Mosque; of which, the deceased is a Muthavalli. The first of the versions about the occurrence emerged with the submission of Ex.P.1. It is to the effect that when the prayers were in progress, A2 has instigated A1, and on that, A1 picked up a stone, which was available at the foundation work, and hit the deceased, when he was in ‘Rooku’ position. On receiving the injury, the deceased, is said to have cried “Margaya” and immediately, PW1 and others turned back and found A1 and A2 running from the Mosque. They are also said to have noticed a serious blood injury on the deceased, and his becoming unconscious. It is important to note that PW.1 did not mention the names of any other witnesses, who are said to have seen the occurrence. They are also said to have noticed a serious blood injury on the deceased, and his becoming unconscious. It is important to note that PW.1 did not mention the names of any other witnesses, who are said to have seen the occurrence. The statement under Section 161 Cr.P.C. was recorded from PW.1, one day later. By that time, PW.10 received intimation from the hospital, about the death of the deceased. While according to PW.1, the incident occurred between 9.00 and 9.30 P.M., the intimation, received from the hospital, marked as Ex.P.9, discloses that the Doctor, who sent the intimation signed it at 9.00 P.M. Further, PW.10 stated in his evidence that he received Ex.P.9, at 9.30 P.M. The discrepancies as to timing are clearly evident. If the incident occurred around 9.00 and 9.30 P.M., in the Mosque, the question of the Doctor, signing the death intimation, at 9.00 P.M., on examining the injured person brought from a distant place does not arise. In a given case, this discrepancy can also be treated as trivial, if other circumstances, or evidence on record, leads to proof of the occurrence. The prosecution has collected as many as 10 material objects. They ranged from the clothing of the deceased, to the mats on the floor of the Mosque. PW.1 categorically stated that he took the deceased with his hands to the auto-rickshaw for taking him to hospital. In the process, his clothes are bound to get stained with blood. Not a single stain was noticed, much less any cloths were exhibited as material objects. PW.1 admitted in his cross-examination that many statements made by him in the chief-examination are at variance or improvements, when compared to Ex.P.1 or his statement under Section 161 Cr.P.C. The evidence of PW.1 itself was not consistent. Basically, there exist three important stages in the course of offering prayers in the Mosque, viz., ‘Vujju’, ‘Rooku’ and ‘Sajda’. In first stage, the devotee remains in kneeled position; with spinal cord in vertical condition. In the second stage, he lifts his palms even while continuing in kneeled condition and in the third position, the body is completely bent to such an extent that the forehead touches the ground. In his chief-examination, PW.1 stated that A.1 attacked the deceased with a stone, when the latter was in ‘Rooku’ position. In the second stage, he lifts his palms even while continuing in kneeled condition and in the third position, the body is completely bent to such an extent that the forehead touches the ground. In his chief-examination, PW.1 stated that A.1 attacked the deceased with a stone, when the latter was in ‘Rooku’ position. However, in the cross-examination, he stated that the attack was when the deceased was in ‘Sajda’ position. It was suggested to him that while A1 is physically handicapped person, not being able to run, A2 is an old man of 72 years with legs in an irregular bow shape. From PW.10 also it was elicited that both A.1 and A.2 would not be in a position to run. The relevant portion reads: “I have seen the feet of A.2. It is true that the legs of A.2 are in Bow shape. It is true that A.1 used to walk by limping due to the deformity at the joints of waist and thigh.” However, PW.1 stated that attempts made by other devotees present in the Mosque to chase A1 and A2, did not materialize. Thus, there are several contradictions in the evidence of PW.1. Added to that, he happens to be the brother of the deceased, and his evidence cannot be taken as that of an independent witness. PW.2 is the wife of the deceased and her evidence is of no assistance to the Court. PW.3 is said to be an injured eyewitness. He was said to be in second row, while the deceased was in third row, in the Masjid, and after A1 hit on the head of the deceased with the stone, it rolled off and hit the leg of PW.3 and caused bleeding injury. PW.7, the Doctor, who treated PW.3, stated in the cross-examination as under: “The injured himself had given the information that he received that injury due to fall of a rock.” It was not mentioned that PW.3 has stated that he received injuries from the stone, which has fallen from the hands of A1. It has already been observed that the name of PW.3 does not figure in Ex.P.1. This witness was examined by the police few days after the occurrence. According to this witness, the incident occurred, when all the devotees were in ‘Sajda’ position. It has already been observed that the name of PW.3 does not figure in Ex.P.1. This witness was examined by the police few days after the occurrence. According to this witness, the incident occurred, when all the devotees were in ‘Sajda’ position. It was suggested to him that the injury to his leg occurred, when he fell down. It is also important to note that this witness was not referred to the hospital by the police and he went to the hospital on his own accord. Though this witness is also said to have received blood injuries, he admitted that his clothes were not stained, nor the police have seized them. PW.4 is said to be another eyewitness, who was sitting in the second row, along with PW.3. This witness stated that soon after the deceased received injuries, a Rumal was tied. This aspect was not spoken to by any other witness. In the cross-examination, he admitted that he was not by the side of the deceased, as stated by him before the police. He has also admitted that he did not state before the police, at the time of inquest, that A1 came out from the first row, when the devotees were in ‘Sajda’ position. He admitted that he cannot give the number of auto-rickshaw, in which the deceased was taken to the hospital. Another admission is that Shahi Imam, the priest, was present, in the Mosque, when the incident took place. Since the presence of this witness was not mentioned in Ex.P.1, or in the statement of PW.1 recorded under Section 161 Cr.P.C., it becomes somewhat difficult to accept the evidence of PW.4. When the devotees are offering prayers in a Mosque, it is only the person in a last row would be in a position to see the persons in front of him. Added to that, if the devotees are in ‘Sajda’ position, nothing would be visible to them. It is only the priest, who conducts the prayers, that would be in a position to observe everything that is taking place in the Mosque. For reasons best known to them, the prosecution did not examine Shahi Imam. Further, PW.1 at one stage, stated that A1 and A2 were in the company of LWs.6 and 7 and later he changed that version, to the effect that they were in the company of LWs.7 and 8. For reasons best known to them, the prosecution did not examine Shahi Imam. Further, PW.1 at one stage, stated that A1 and A2 were in the company of LWs.6 and 7 and later he changed that version, to the effect that they were in the company of LWs.7 and 8. The persons, who sit in the Mosque immediately by the side of the accused, would be in a better position to speak about the occurrence. Failure of the police to examine LWs.6 to 8 is certainly fatal to the case of the prosecution. In the result, the criminal appeal is allowed. The conviction and sentence ordered in S.C.No.339 of 2007 on the file of V Additional Sessions Judge, Rayachoty, dated 29.01.2009, against the appellant-accused No.1, are set aside. The appellant-accused No.1 shall be set at liberty forthwith, unless his detention is needed in any other case. The fine amount, if any, paid by the appellant-accused No.1 shall be refunded to him. The miscellaneous petition filed in this appeal shall also stand disposed of.