Shaik China Brahmam Vs. State of A.P.  Insc 1195 (29 November 2007)
Mathur & D.K. Jain
APPEAL NO. 927 OF 2006 G. P. MATHUR, J.
This appeal under Section 2 of the Supreme Court (Enlargement of Criminal
Appellate Jurisdiction) Act, 1970 has been preferred against the judgment and
order dated 2.3.2006 of Andhra Pradesh High Court, by which the appeal filed by
the State was allowed and the judgment and order dated 24.9.2002 of the learned
Sessions Judge, Guntur acquitting the two accused in Sessions Case No.466 of
2000 was set aside. The High Court by the impugned judgment and order convicted
both the accused Shaik Khasim Saida (A-1) and Shaik China Brahmam (A-2) under
Section 302 read with Section 34 IPC and sentenced them to imprisonment for
life and a fine of Rs.200/- each.
case of the prosecution, in brief, is that Shaik Khasim Saida (A-1) had
borrowed Rs.300/- from the deceased Shaik Masthan Vali some time back, but he
did not repay the amount due to which their relations became strained. At about
4.00 p.m. on 6.4.1999, the deceased Shaik Masthan
Vali and his cousin Shaik Baba Vali (PW.1) were returning to the village from
northern side of Chandravanka rivulet after attending the call of nature. Both
the accused suddenly appeared on the spot. A-1 stabbed the deceased Shaik Masthan
Vali repeatedly with a knife which he has carrying and A-2 caused injuries to
the deceased with iron pipe. After receiving injuries the deceased fell down
dead on the spot. PW.1 Shaik Baba Vali lodged an FIR at P.S. Macherla at 6.30 p.m. on the same day. On the basis of the FIR a crime was
registered as Case Crime No.55 of 1999 under Section 302 read with Section 34
IPC at the police station.
After the case had been registered at the police station, PW.8 K. Babu Rao,
Inspector of Police, P.S. Macherla commenced investigation of the case. He
arrested A-1 and A-2 and went to the scene of occurrence and prepared a site
plan. After recording statement of witnesses, he submitted charge-sheet against
both the accused A-1 and A-2. The prosecution in order to establish its case
examined nine witnesses and filed some documentary evidence. The learned
Sessions Judge, Guntur, by the judgment and order dated
24.9.2002 acquitted both the accused A-1 and A-2. Feeling aggrieved by the
order of the learned Sessions Judge, the State filed appeal in the High Court,
which was allowed and accused were convicted under Section 302 read with
Section 34 IPC and were sentenced to imprisonment for life and a fine of
Rs.200/- each. The present appeal has been filed only by Shaik China Brahmam
(A-2). It appears that Shaik Khasim Saida (A-1) has not preferred any appeal
against his conviction and sentence.
have heard Mr. I.V. Narayana, learned counsel for the appellant and Ms. Altaf Fathima,
learned counsel for the State of Andhra Pradesh and have perused the record.
case basically rests on the testimony of PW.1 Shaik Baba Vali. He has deposed
that his house is situate near Chennakesava Swamy Temple in Macherla and both the accused viz. A-1 and A-2 are also
residents of the same place. The deceased Shaik Masthan Vali was also resident
of Macherla. The deceased had informed him that A-1 had borrowed money from him
and had not returned the same and due to this their relations had become
strained. At about 4.00
p.m. on 6.4.1999, he
and deceased Shaik Masthan Vali had gone to the field by the side of Chandravanka
rivulet for answering the call of nature. Thereafter, they were returning home
and the deceased was little behind him. Suddenly he saw that A-1 had caught
hold of the deceased by putting his arm around his neck and then he started
giving him repeated blows by a knife. A-2 also assaulted the deceased with an
iron pipe. The deceased raised an alarm. When PW.1 tried to save the deceased,
both the accused threatened him that they would also assault him. The deceased Shaik
Masthan Vali snatched the knife from the hands of A-1, but A-1 again snatched
back the knife from the deceased and gave him several blows. In the process of
snatching the knife, the hands of A-1 also got cut injuries. PW.1 then went to
the house of the deceased Shaik Masthan Vali and informed his wife and other
relations about the incident. Thereafter, he went to P.S. Macherla and
presented a written report. He got the report scribed by a person who was
sitting outside the police station. He identified the knife M.O. 1 and the iron
pipe M.O. 2, which were shown to him in Court. He also identified the clothes,
which the deceased was wearing viz. M.O. 3 the blood stained shirt, M.O. 4 the
blood stained banian, M.O. 5 the blood stained dhoti, M.O. 6 the chappal which
the deceased was wearing and M.O. 7 the towel which the deceased was having on
his body. In his cross-examination, he has stated that his house and that of
the deceased were situate in the same ward and in side-by-side streets. The
accused A-1 and A-2 were staying in a parallel streets. The distance between
the house of the deceased and the police station is about 3 furlongs. He
clarified that M.O. 2 is an iron pipe.
PW.2 Sk. Masthan Bee is the wife of the deceased Shaik Masthan Vali. She
deposed that her house is by the side of Chennakesava Swamy Temple in Macherla
and the house of PW.1 Shaik Baba Vali was near her house and the houses of the
accused were situate at some distance. She further deposed that PW.1 Shaik Baba
Vali came to her house and informed that A-1 and A-2 had killed her husband.
There was some dispute between her husband and the accused on account of
borrowing of Rs.300/- and two days prior to the incident an altercation had
taken place between them at the tea stall of Achari, which she had also seen.
At that time A-1 had said loudly that he would kill her husband. After learning
about the incident from PW.1 she rushed to the scene of occurrence and saw the
dead body of her husband lying there. She denied the defence suggestion that
A-1 had not loudly said two days back that he would kill her husband or that
PW.1 had not informed her that A-1 and A-2 had killed her husband.
PW.5 Dr. P. Rajasekhara Reddy was working as Civil Assistant Surgeon in
Community Health Centre, Macherla from October 1997 to 4.1.2001. He conducted
postmortem examination over the body of Shaik Masthan Vali from 11.00 a.m. onwards on 7.4.1999 and found the following injuries
on the same :-
A cut injury over the anterior aspect of neck, cutting the trachea and
carotids, 14 cm x 5 cm.
cut injury over the right temple, 3 cm x 1 cm, dark brown in colour.
cut injury over the nape, 10 cm x 4 cm.
cut injuries over the occipital area, each 3 cm x 1 cm side by side.
Another cut injury over the occipital area, 2" above the wound no.4 semi
circle, 7 cm x 3 cm, exposing the brain matters.
cut injury over the left parietal area above the left ear, 3 cm x 1 cm.
cut injury behind the left ear, 4 cm x 1 cm.
cut injury below the left year, 2 cm x 1 cm.
cut injury on the right ear, 5 cm in length.
cut injury on the right thumb 2 cm x 2 mm.
cut injury on the right little finger, 1 cm x 2 mm.
cut injury over the right wrist on flexor side, 4 cm x 2 cm.
cut injury over the right scapular area, 2 cm x = cm.
contusion over the left scapular area, 3 cm in diameter, brown in colour.
contusion on the right axilla, 4 cm x 1 cm, brown in colour.
cut injury over the left thumb, circling the both surfaces, 3 cm x 1 mm.
Two small cut injuries on the left index finger, each 1 cm x 1 mm 1 cm apart.
contusion on the left forearm 3 cm x 4 cm.
Scrotum was swollen.
opening the body all viscera are normal and pale.
died about 18 to 22 hours prior to postmortem examination."
opinion of the doctor, the deceased had died on account of shock and haemorrhage
due to multiple injuries and cardio- pulmonary arrest. Injury no.1 caused on
the anterior aspect of the neck cutting the trachea and carotids and injury
no.5 i.e. the injury on the occipital area were fatal. He further opined that
injury no.1 and injury no.5 were sufficient to cause instantaneous death.
PW.9 Dr. S. Sakunthala
was Civil Assistant Surgeon at Government Hospital, Macherla. She examined Shaik Khasim
Saida (A-1) at 7.55
p.m. on 6.4.1999 and
found the following injuries on his body :
Incised wound 4 x = cm, over right palm, bleeding present, red.
Incised wound 3 x = cm, over right palm, 1 cm. below no.1 injury, bleeding
Incised wound = x < cm, over left index, ring, middle, little fingers except
thumb, over palm inner side, red."
opinion of the doctor, the injuries were simple in nature and were caused due
to a sharp object. The duration of injuries was 3 to 4 hours.
the same day, i.e., on 6.4.1999 at 7.30 p.m. PW.9 Dr. S. Sakunthala also examined Shaik China
Brahmam (A-2) and found the following injuries on his body :- "Incised
wound 1 cm x < cm over right index finger, over palm side."
doctor opined that the injury was simple in nature and was caused due to a
sharp object. The duration of injury was 3 to 4 hours.
PW.7 T.A. Rambabu was Head Constable, P.S. Macherla. He has deposed that on
6.4.1999, when he was attending to his duties in the police station, he
received information that a murder had taken place near Chandravanka Vagu
(rivulet). He went to the office of Inspector of Police and informed him about
the same. At about 6.30
p.m. PW.1 Shaik Baba Vali
came to the police station and presented a written report Ex.P1. He registered
the same as Case Crime No.55 of 1999 under Section 302 IPC and sent copies of
the FIR to all concerned. Thereafter, the Police Inspector came to the police
station at 6.40 p.m. along with two persons who were
having injuries on their hands. He sent them for medical examination. PW.8, K. Babu
Rao was Inspector of Police, P.S. Macherla. He deposed that about 5.30 p.m. on 6.4.1999, he heard a rumour that a murder had
taken place near Chandravanka Vagu. He immediately left for the scene of
occurrence along with some police personnel which was between Macherla and Jammalamadaka
near the field of one Pathu Sahab and saw a dead body there. He also received
information about the presence of the accused near Jasmine Garden. He proceeded there with his staff. He saw A-1 and A-2 and
arrested them. They had injuries on their hands. They were taken to the police
station from where they were sent for medical examination. As it had become
dark, he did not conduct any further investigation which he commenced on the
next day at 7.00 a.m. He prepared a site plan. He also
seized the knife M.O. 1 and the iron pipe M.O.2. He also seized M.O. 6 and M.O.
7 belonging to the deceased. He held inquest over the body of the deceased at 8.00 a.m. After recording statements of the witnesses under
Section 161 Cr.P.C. and preparing other relevant papers, he submitted
charge-sheet against the two accused viz. A-1 and A-2.
have given above the gist of the evidence adduced by the prosecution. The
testimony of PW.2, Sk. Masthan Bee wife of deceased Shaik Masthan Vali
establishes that there was dispute regarding borrowing of Rs.300/- between A-1
and the deceased. Two days prior to the occurrence, exchange of hot words had
taken place between them at the tea stall of Achari, where A-2 was also present
and at that time A-1 had declared that he would kill the deceased Shaik Masthan
Vali. This shows that there was motive on the part of the accused to assault
the deceased. PW.1 Shaik Baba Vali had deposed that at about 4.00 p.m. on
6.4.1999 he had gone along with deceased across Chandravanka Vagu for answering
the call of nature.
returning A-1 armed with knife and A-2 armed with rod started assaulting the
deceased Shaik Masthan Vali. He has also deposed that the deceased had snatched
the knife from A-1, but A-1 snatched it back and again caused injuries from the
same to the deceased. PW.1 gave immediate information about the occurrence to
the family members including the wife of the deceased, PW.2 Sk. Masthan Bee,
which is established from her testimony. The most important feature of the case
is that PW.8 K. Babu Rao, Inspector of P.S. Macherla, received information at
about 5.30 p.m. that a murder had taken place near Chandravanka Vagu. He left
for the scene of occurrence and found the dead body there. He also received
information about the presence of the accused near Jasmine Garden and arrested
them at about 6.40 p.m. Both the accused were sent for medical examination and
three incised wounds were found on the right and left palm of A-1 and one
incised wound was found on the right palm of A-2. The injuries on the palm of
A-1 and A-2 completely corroborate the version given by PW.1 Shaik Baba Vali
that the deceased had snatched the knife from the hands of A-1, but accused
again snatched it back. The multiple injuries found on the body of the
deceased, which are mostly cut injuries besides contusions, also corroborate
the eye-witness account given by PW.1 Shaik Baba Vali. It may be mentioned here
that there is no evidence on record to show that there was any enmity between
PW.1 Shaik Baba Vali and the accused, on account of which he may falsely
implicate them. In fact, the defence has given no suggestion in his
cross-examination that he had any reason to falsely implicate the accused.
Thus, from the evidence on record, the case of the prosecution is fully
established. The High Court, therefore, rightly convicted both the accused. The
learned Sessions Judge had committed manifest error of law in giving too much
weight to some minor and insignificant contradictions. The learned Sessions
Judge had also given undue importance to the timings deposed to by PW.1 in
going from the place of occurrence to the house of the deceased, then going
from there to the police station and getting the FIR scribed. He is not a
highly educated person and he was not expected to have a very accurate idea of
timings. The learned Sessions Judge disbelieved the prosecution case on grounds
which were not even worth taking notice of and were completely divorced from
reality. The view taken by the learned Sessions Judge being wholly perverse,
was rightly set aside by the High Court and it was perfectly justified in
convicting both the accused A-1 and A-2.
Learned counsel for the appellant has next submitted that the appellant herein
viz. Shaik China Brahmam (A-2) cannot be held liable under section 302 read
with Section 34 IPC as the main injuries were given by Shaik Khasim Saida
(A-1), who was armed with a knife and he was responsible for injuries to
trachea and occipital region which proved fatal. He has submitted that the
appellant Shaik China Brahmam (A-2) was armed with an iron pipe and he did not
cause any fatal injury. We are unable to accept the submission made.
come in evidence that the pipe with which A-2 was armed was in the shape of an
iron rod and iron rod can also cause fatal injuries.
criminal act is done by several persons in furtherance of common intention of
all, the other offenders are liable for that act in the same manner as the
principle offender as if the act was done by such offenders also. In this case,
both the accused went jointly to a place where the deceased had gone for
attending the call of nature and they jointly assaulted him. The fact that A-2
also received injuries in his palm shows that he took active part in snatching
the knife from the hands of the deceased when he had succeeded in snatching it
from A- 1. This clearly shows that A-2 shared the common intention with A-1 to
cause injuries to the deceased. The essential conditions for the application of
Section 34 IPC are common intention to commit an offence and participation by
all the accused in doing act or acts in furtherance of that common intention.
If these two ingredients are established, all the accused shall be liable for
the said offence. We have no doubt that in the present case both the
ingredients are fully established and, therefore, A-2 is also liable for
commission of the offence. We are, therefore, clearly of the opinion that A-2
is guilty of the offence under Section 302 read with Section 34 IPC and the
High Court rightly convicted and sentenced him for the said offence.
the result, the appeal fails and is hereby dismissed.