SHAIKH KARIMULLAH @ BABU AND ORS.versusSTATE OF A.P.

                      [2009] 1 S.C.R. 953


        SHAIKH KARIMULLAH @ BABU AND ORS.                           A
                        v.
                   STATE OF A.P.
             (Criminal Appeal No. 223 of 2009)

                     FEBRUARY 6, 2009
                                                                    B
    [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
                   SHARMA, JJ.]

     Penal Code, 1860 - ss. 302 and 325 - Conviction u/s.
325 instead of s. 302 - Accused along with other co-accused         C
attacked deceased resulting in his death - Minor dispute
bHtween parties - One witness deposing that accused
assaulted with stick and other witnesses deposing that
accused had given fist blow - No charge framed u/s. 34
against accused - Com·iction uls. 302 by courts below -             D
Justification of - Held: Not justified - Conviction altered to s.
325 with custodial sentence of three years.

    The question which arose for consideration in this
appeal was whether the courts below were justified in
                                                                    E
convicting the appellant-accused u/s. 302 IPC and
imposing sentence of life imprisonment when one
witness deposing that appellant assaulted with a stick,
the other witnesses deposing that appellant inflicted a fist
blow to the deceased.
                                                                    F
    Partly allowing the appeal, the Court.
      HELD: The records clearly show that no charge was
framed in terms of s. 34 IPC so far as the appellant is
ccmcerned. It is also accepted that except PW-1 who                 G
st.ated that the appellant assaulted the deceased with a
st;ick, the other purported eye witnesses sfated that the
ap1pellant had given fist blow. Considering the evidence
of witnesses as brought on record the appropriate
ccinviction would be in terms of s. 325 and not u/s. 302
                              953                                   H
    954           SUPREME COURT REPORTS               (2009] 1 S.C.R.


A IPC. Custodial sentence of three years would meet the
  ends of justice. [Para 7] [956-F-G]                                       .Jr- -

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 223 of 2009.
B        From the final Judgment and Order dated 11.10.2006 of
    the High Court of Judicature, Andhra Pradesh at Hyderabad
    in Criminal Appeal No. 2286 of 2004
          Chanchal Kumar Ganguli (SCLSC) for the Appellants.

c       I. Venkatanarayana, D. Bharathi Reddy, Altaf Fatima and
    V. Prabhakar Rao for the Respondent.
          The Judgment of the Court was delivered by
          DR. ARIJIT PASAYAT, J.1. Leave granted.
D      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
E 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
                                                                        l
F 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 lbraheem (A-
    3), as stated by learned counsel for the appellants.
                                                                               -
G         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
H were performing Annadanam at Anjaneya Swamy Temple, Al
         SHAIKH KARIMULLAH @BABU AND ORS. v. STATE                    955
                 OF A.P. [OR. ARIJIT PASAYAT, J.]
~-I     kicked the Sh.amiana and sat on a Mahalakshmamma tree.                A
        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
        arrned with sticks and iron rods went to the temple and enquired      B
        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,   c
       A2; beat with a stick on his forehead just above left eye and
       thf~n 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
       thE~m with sticks and stones. Al threatened them at the point of       D
       knife and ran away. Thereafter, the deceased was taken to
       Ctiilakaluripet Town Police Station as the deceased was
       unconscious, P.W.I gave a report - Ex.P1. On the basis of the
       above report, P.W. 11, the then Sub-Inspector of Police
       renistered the case in Cr.No. 193 of 2000 and issued FIR Ex.P-
                                                                              E
       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
       SC1"3ne 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             F
       Circle Inspector of Police, who visited the Government General
       Hospital, Guntur; held inquest over the dead body in the
       prE~sence 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            G
       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.PS panchanama and after completion of investigation           H
    956           SUPREME COURT REPORTS               [2009] 1 S.C.R.


A   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.
B
          In order to prove the guilt of the accused, prosecution
    examined 11 witnesses- P.Ws I 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.01 to 05,
c   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.
       5. According to learned counsel for the appellants Section
D 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.
E       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
F 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
G 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.
H N.J.                                       Appeal partly allowed.