REPORTABLE

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. …… Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge 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.    

3. The present appeal is restricted to Shaik Ibraheem (A-3), as stated by

learned counsel for the appellants.  

4. Prosecution version in a nutshell is as follows :  

B.  Nagabhusan  (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

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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

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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.

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5. According 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.  

6. According to learned counsel for the State the judgments of the trial

Court and the High Court do not suffer from any infirmity.   

7. The  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.  

8. The appeal is allowed to the aforesaid extent.   

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……………………………………J. (Dr. ARIJIT PASAYAT)

……………………………………J. (Dr. MUKUNDAKAM SHARMA)

New Delhi:  February 06, 2009

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