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CASE NO.: Appeal (crl.)  927 of 2006

PETITIONER: Shaik China Brahmam

RESPONDENT: State of A.P.

DATE OF JUDGMENT: 29/11/2007

BENCH: G.P. Mathur & D.K. Jain

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 927 OF 2006

 G. P. MATHUR, J.

1.      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.    

2.      The 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.   

3.      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

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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.   

4.      We 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.  

5.      The 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.   

6.      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.   

7.      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

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the following injuries on the same :- "1.     A cut injury over the anterior aspect of neck, cutting the  trachea and carotids, 14 cm x 5 cm.

2.      A cut injury over the right temple, 3 cm x 1 cm, dark  brown in colour.

3.      A cut injury over the nape, 10 cm x 4 cm.

4.      Two cut injuries over the occipital area, each 3 cm x 1  cm side by side.

5.      Another cut injury over the occipital area, 2" above the  wound no.4 semi circle, 7 cm x 3 cm, exposing the brain  matters.

6.      A cut injury over the left parietal area above the left ear,  3 cm x 1 cm.

7.      A cut injury behind the left ear, 4 cm x 1 cm.

8.      A cut injury below the left year, 2 cm x 1 cm.

9.      A cut injury on the right ear, 5 cm in length.

10.     A cut injury on the right thumb 2 cm x 2 mm.

11.     A cut injury on the right little finger, 1 cm x 2 mm.

12.     A cut injury over the right wrist on flexor side, 4 cm x 2  cm.

13.     A cut injury over the right scapular area, 2 cm x = cm.

14.     A contusion over the left scapular area, 3 cm in diameter,  brown in colour.  

15.     A contusion on the right axilla, 4 cm x 1 cm, brown in  colour.   

16.     A cut injury over the left thumb, circling the both  surfaces, 3 cm x 1 mm.

17.     Two  small  cut  injuries  on  the  left  index finger, each  1 cm x 1 mm 1 cm apart.

18.     A contusion on the left forearm 3 cm x 4 cm.

19.     Scrotum was swollen.

20.     On opening the body all viscera are normal and pale.  

        Patient died about 18 to 22 hours prior to postmortem  examination."  

       In the 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.   

8.      PW.9 Dr. S. Sakunthala was Civil Assistant Surgeon at  Government Hospital, Macherla.   She examined Shaik Khasim Saida

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(A-1) at 7.55 p.m. on 6.4.1999 and found the following injuries on his  body : "1.     Incised wound 4 x = cm, over right palm, bleeding  present, red. 2.      Incised wound 3 x = cm, over right palm, 1 cm. below  no.1 injury, bleeding present, red. 3.      Incised wound = x < cm, over left index, ring, middle,  little fingers except thumb, over palm inner side, red."

       In the 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.

9.      On 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."

The 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.  

10.     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.    

11.     We 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.    While 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

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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.   

12.     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.    It has 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.   When a 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

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the offence under Section 302 read with Section 34 IPC and the High  Court rightly convicted and sentenced him for the said offence.  

13.     In the result, the appeal fails and is hereby dismissed.