Mohd. Pasha vs The State of Andhra Pradesh

L. Narasimha Reddy, J.—Two beggars died in front of Sri Sitarama Swamy Temple by the side of Sri Sai Baba Temple, at Chadarghat, on 09.12.2007. The police registered Crime No. 915 of 2007, in relation thereto. Alleging that both the deceased were killed by the watchman of the Temple, by name, Mohd. Pasha, the police prepared the scene of offence panchanama, caused inquest, and thereupon, the post mortem examination of the dead bodies was conducted in Osmania General Hospital. After recording the statements of the persons acquainted with the crime, the prosecution filed a charge sheet against the sole accused, alleging that he caused the death of two beggars in front of the Temple by hitting them with boulders. The Metropolitan Sessions Judge, Hyderabad, in S.C. No. 176 of 2008, framed necessary charges, in this behalf. On the accused pleading not guilty, the trial was conducted, wherein P.Ws. 1 to 15 were examined and Exs. P.1 to P.24 were filed. MOs. 1 to 3 were taken on record.

Through its judgment, dated 26.08.2009, the trial Court held the accused guilty of the offences punishable u/s 302 I.P.C. Sentence of imprisonment for life and fine of Rs. 100/-, in default to undergo simple imprisonment for one month was imposed. Hence, this appeal by the sole accused.

Sri D. Raghava Reddy, learned counsel for the appellant, submits that the basis for the trial Court to initiate the proceedings was said to be Ex. P.1, a statement recorded from P.W. 1, the Poojari of the Temple, and there is any amount of uncertainty about it. He submits that while according to P.W. 1, Ex. P.1 was recorded at Afjalgunj Police Station, after 11.00 P.M., on 09.12.2007, the police officials such as P.Ws. 12 and 15 stated that the statement of P.W. 1 was recorded at the scene of offence itself at 7.30 P.M., and crime was registered; or that the crime was registered on receipt of intimation by the police, without reference to P.W. 1. He submits that P.Ws. 2 to 6, the independent witnesses, did not support the case of the prosecution and even the evidence of P.W. 1 was shaky to such an extent that hardly any cross-examination was needed.

Learned Additional Public Prosecutor, on the other hand, submits that for all practical purposes, P.W. 1 is an eyewitness, and the trial Court has taken the same into account. She contends that though P.W. 1 gave a detailed account of the occurrence of the offence, the witness was not cross-examined at all, and thereby, the case against the accused stood proved.

The accused was working as a watchman in the Temple. The incident is said to have taken place at 5.30 P.M., on 09.12.2007. There is lack of clarity or consistency, as to the manner in which the information, relating to the death of two beggars in front of the Temple, reached the police.

Ex. P.1 is a statement recorded from P.W. 1. Whenever a complaint is submitted by a victim or a third party in relation to occurrence of a crime or even where the statement of such a person is recorded by the police, the time at which it is received or recorded is mentioned and immediately underneath it, the factum of registration of the crime with reference to the relevant provisions of law is mentioned. In the instant case, Ex. P.1 was recorded by S.I. of Police, P.W. 12. However, he made an endorsement as under:

I am sending the statement through HC 3031 with request that register a case under Sections 302 and 307 I.P.C.

From this, it is evident that the statement was recorded at the place of occurrence and not in the police station. Ex. P.1 was received by the Inspector of Police, P.W. 15, and he registered Crime No. 905 of 2007. In his deposition, P.W. 15 did not state the basis for his registering the crime.

What makes the matter a bit curious is that P.W. 1 stated that he went to Afjalgunj Police Station and gave oral report to the police and the same was recorded as Ex. P.1. In the cross-examination, he stated that the statement was recorded after 11.00 P.M., in the Police Station. P.W. 12 mentioned that the statement of P.W.11 was recorded at that place, suggesting thereby, the place of occurrence. This is the uncertainty that surrounds the registration of crime or recording of statement under Ex. P.1.

The Chief examination of P.W. 1, is as under:

I am resident of Kothapet. I am doing priest work in Seetarama Temple at Chaderghat. On 09.12.2007 at about 5.30 p.m. I was doing pooja in Temple sanctorum I heard commotion outside the temple. When I came out I saw the accused hurling a stone against two persons. Out of whom one person died there itself and another person who was injured, was taken in 108 Ambulance. When the accused was running away from there, the police caught him. Both the deceased were having bleeding injuries. I did not observe the places of injuries on them. Both the deceased were beggars. I went to Afzalgunj Police station and gave oral report to the police who recorded the same and read over the same to me. I accepted the same as correct and signed therein. Ex. P.1 is the repot. Police did not examine me thereafter.

According to this, the accused hurled only one stone against two persons and that resulted in the death of one person and the injuries to another. However, the contents of Ex. P.1 are substantially different. According to that, the accused asked the beggars to move away from the Temple premises and when the altercation took place in this behalf, the accused hit one of the beggars with a boulder and thereafter hit another beggar with a stone. The stone with which he attacked the second beggar is said to have been thrown out, while running away from the place. Though in Ex. P.1 as well as in the deposition, P.W. 1 stated that the police constable caught hold of the accused, he did not explain as to what was the occasion for the policeman to be at that place. The post-mortem report in relation to both the deceased discloses that as many as eight injuries were noticed on their bodies. One injury can be caused by hitting with boulder, and it is un-understandable as to how the remaining seven injuries for each of the deceased, were caused.

It is important to mention that though P.W. 4 was treated as hostile, he stated that he noticed the beggars quarreling among themselves, resulting in the deaths. Such occurrences are not uncommon. P.Ws. 2 to 6 who were cited as witnesses by the prosecution did not support the case and they were declared by the trial Court, as hostile. The other witnesses are only the officials of the Government or panch witnesses. The result is that there is hardly any evidence worth its name, to establish that the death of the beggars before Sri Sitarama Swamy Temple near Chadarghat was caused by the accused.

In the result, the Criminal Appeal is allowed. The conviction and sentence ordered in S.C. No. 176 of 2008 on the file of the Metropolitan Sessions Judge, Hyderabad, dated 26.08.2009, against the appellant-accused, are set aside. The appellant-accused shall be set at liberty forthwith, unless his detention is needed in any other criminal case. The fine amount, if any, paid by the appellant-accused shall be refunded to him.

The miscellaneous petition filed in this appeal shall also stand disposed of.