Shaikh Karimullah @
Babu & Ors. Vs. State of A.P.  INSC 238 (6 February 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 223 OF 2009
(Arising out of SLP(Crl. ) No. 6657 of 2007) Shaikh Karimullah @ Babu and Ors.
......Appellants Versus State of A.P. ......
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a Division Bench of the Andhra Pradesh
High Court at Hyderabad dismissing the appeal filed by the appellants and two
others. The trial Court by its judgment dated 9.9.2004 acquitted A1 to A5 for
the offence punishable under Section 148 of the Indian Penal Code, 1860 (in
short the `IPC'). However A-1 to A-3 were found guilty for the offence under
Section 302 IPC and they were sentenced to suffer imprisonment for life and
fine of Rs.1000 with default stipulation, while A-4 and A-5 were not found
guilty on the second charge. A-2 to A-5 were also found not guilty for the
offence under Section 324 IPC. A4 and A5 were acquitted of all the charges.
present appeal is restricted to Shaik Ibraheem (A-3), as stated by learned
counsel for the appellants.
version in a nutshell is as follows :
(hereinafter referred to as the `deceased') was a kerosene dealer. Al was
having illicit intimacy with one Krupa and often used to come to the colony and
make enquiries about her. On 14.1.2000 while P.Ws. 1, 3 to 6 and the deceased
were performing Annadanam at Anjaneya Swamy Temple, Al kicked the Shamiana and
sat on a Mahalakshmamma tree. When the said act was objected by Dastagiri, as
it was a holy tree, he threatened them and went away. On 31.3.2000 at about
7.30 p.m. while the deceased, PWs 1, 3 to 6 were performing Bajana at the Anjaneya
Swamy temple, all the accused persons armed with sticks and iron rods went to
the temple and enquired about Krupa. P.W.3 told them that it was not proper for
them to behave as it was a residential colony; on which Al to A5 pushed him
towards the house of Bellamkonda Venkateshwarlu abusing him; so saying Al beat
the deceased on right side of the head with an iron rod, A2 beat him with stick
on his forehead, A3 beat with a stick on his forehead just above left eye and
then fisted on his face, A4 beat him with a stick on his nose and A5 on his
back; then the deceased fell down unconscious. When P.Ws. 1, 3 to 6 tried to
intervene, all the accused attacked them with sticks and stones. Al threatened
them at the point of knife and ran away. Thereafter, the deceased was taken to
Chilakaluripet Town Police Station as the deceased was unconscious, P.W.l gave
a report - Ex.P1. On the basis of the above report, P.W. 11, the then
Sub-Inspector of Police registered the case in Cr.No. 193 of 2000 and issued
FIR Ex.P-10. He then sent the deceased and the injured i.e. P.Ws. 1, 3 and 5 to
the Government Hospital for treatment, visited the scene of offence, conducted
panchanama, draw rough sketch of the scene Ex.P-11. At about 2 P.M., on
receiving the death intimation altered the section of law and issued altered
FIR-Ex.P13. Further investigation was taken over by PW-10, the Circle Inspector
of Police, who visited the Government General Hospital, Guntur; held inquest
over the dead body in the presence of P.W.7, covered under Ex.P3 and sent the
dead body for postmortem examination. On 01.04.2000 P.W.9, the doctor conducted
autopsy over the dead body of the deceased and issued postmortem report Ex.P9
opining that the cause of death was due to head injury. Al to A5 were arrested
on 13.04.2000 by P.W.10 in the presence of P.W.7 and as per the statements made
by them M.Os. 4 to 8 were recovered under Ex.P5 panchanama and after completion
of investigation he laid the charge sheet for the offence under Sections 147,
148, 324, 302 read with Section 149 IPC.
On committal of the
case, necessary charges were framed against the accused. All the accused
persons pleaded not guilty and claimed for trial.
In order to prove the
guilt of the accused, prosecution examined 11 witnesses- P.Ws l to 11, marked
Exs. P1 to P13 and exhibited M.Os. 1 to 8.
On behalf of defence
relevant portions of statements of P.Ws.1, 4 and 6 under Sec. 161 of Code of
Criminal Procedure were marked as Exs.D1 to D5, but no oral evidence has been
let in on their behalf. Trial Court, as noted above, recorded conviction. High
Court did not interfere and by impugned judgment dismissed the appeal.
to learned counsel for the appellants Section 34 could not have been pressed
into service as there was no charge framed and findings recorded are contrary
to the evidence, as all witnesses except PW1 has stated that the appellant had
given a fist blow. That being so, it is submitted that offence punishable under
Section 302 is not made out.
to learned counsel for the State the judgments of the trial Court and the High
Court do not suffer from any infirmity.
records clearly show that no charge was framed in terms of Section 34 so far as
the appellant is concerned. This position is fairly conceded by learned counsel
for the respondent. It is also accepted that except PW-1 who stated that the
appellant assaulted the deceased with a stick, the other purported eye
witnesses stated that the appellant had given fist blow. Considering the evidence
of witnesses as brought on record the appropriate conviction would be in terms
of Section 325 IPC and not Section 302 IPC. Custodial sentence of three years
would meet the ends of justice.
appeal is allowed to the aforesaid extent.
(Dr. ARIJIT PASAYAT)
(Dr. MUKUNDAKAM SHARMA)
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