Shaik Bade vs State of Andhra Pradesh

Anil R. Dave. J.

Being aggrieved by the judgment delivered in Criminal Appeal No. 1190 of 2002 by the High Court of Andhra Pradesh at Hyderabad, dated 7th September, 2004, this appeal has been filed by Shaik Bade - accused No. 2, who has been convicted of the charges under the provisions of Section 302 , 449 and 506(2) of the I.P.C.

The facts giving rise to this appeal in a nut-shell are as under:

Around 7.00 p.m. on 20th December, 1995, when Madamsetti Venkateswara Rao @ Konda (deceased) alongwith Pinapati Yacob(PW-1) and J. Ravi(PW-19) was playing carom, accused A-1 to A-4 and A-6, armed with knives, got into the 2nd floor of a house belonging to Vali (PW-14). A-1 to A-4 entered the room where the deceased, PW 1 and PW 19 were playing carom. A-6 stood near the door. A-1 to A-4 stabbed the deceased indiscriminately and when the deceased fell down, A-2 and A-4 caught hold of the deceased whereas A-1 and A-3 cut the head of the deceased. Then A-1 carried the head of the deceased out of the room and then A-1, A-2 and A-3 went on a scooter to the house of Maddamsetti Siva Kumar (PW-13) and threw the head in front of his house.

We are concerned with Shaik Bade A-2 in this appeal. A-1 could not be traced as he was absconding and, therefore, against rest of the accused the trial was conducted.

So far as A-2 is concerned, on the basis of evidence led before the trial court, it was found that he had stabbed the deceased indiscriminately and when the deceased fell down, he had caught hold of the deceased along with A-4 and while they were holding the deceased, A-1 and A-3 cut the head of the deceased so as to separate the same from his body. Thereafter A-1 to A-3 went on a scooter with the head of the deceased to the house of PW-13 and threw the head near his house. The trial court had examined 23 witnesses, which also included eye witnesses.

At the end of the trial, after examining witnesses and considering the evidence adduced before the trial court, A-2 to A-4 were found guilty of offences under Sections 302 and 449 of the IPC whereas A-2 and A-3 were found to be guilty of offence u/s 506 of the IPC. A-2 was sentenced to suffer life imprisonment and a fine of Rs. 2000/- in default of payment of fine to suffer six months simple imprisonment for offence u/s 302 of the IPC and similar punishment was inflicted for commission of offence u/s 449 of the IPC. For committing offence u/s 506(2) of the IPC, he was sentenced to undergo rigorous imprisonment for 7 years and a fine of Rs. 500/- in default of payment of fine to suffer one month's simple imprisonment. All the sentences were to run concurrently.

Being aggrieved by the judgment and order of the trial court, A-2, A-3, A-4 and A-6 filed an appeal before the High Court and the High Court was pleased to acquit A-4 and A-6 whereas the appeal filed by A-2 and A-3 were dismissed. Being aggrieved by the judgment and order confirming the conviction, A-2 has filed this appeal.

Mr. Rishi Malhotra, learned Counsel appearing for A-2 submitted that the allegations against A-2 and A-4 are practically the same. It was alleged that both had stabbed the deceased along with A-1 and A-3 and thereafter A-2 and A-4 had held hands of the deceased so as to enable A-1 and A-3 to cut the head of the deceased. As A-4 has been acquitted by the High Court, A-2 should also have been acquitted. By not acquitting A-2, the High Court has committed an error and, therefore, the conviction of A-2 should also be set aside.

Thereafter, the learned Counsel submitted that A-2 has been held guilty of committing offence u/s 149 read with Section 302 of the Indian Penal Code. According to him, accused No. 2 could not have been held guilty of Section 149 of the IPC for the reason that so as to make an 'unlawful assembly' there must be an assembly of five or more persons and in the instant case, due to acquittal of Respondent No. 4, there would not be an assembly of five or more persons. In the circumstances, when A-4 has been acquitted and when there were not five persons involved in the offence, there could not have been any unlawful assembly as defined u/s 149 of the IPC. He has relied upon the judgments delivered in case of Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., and in the case of Nanak Chand Vs. The State of Punjab, to substantiate his case. He, therefore, submitted that A-2 could not have been convicted of an offence u/s 149 of the I.P.C.

With regard to the aforestated submission, we note that the basis on which the submission was made is not correct for the reason that A-2 has not been convicted for an offence punishable u/s 149 of the IPC by the trial court. As, there is no conviction on the above count, we do not deal with the aforestated submission and the judgments referred to hereinabove.

On the other hand, the learned Counsel appearing for the State submitted that the order passed by the High Court convicting A-2 is just, legal and proper and, therefore, the impugned order needs no interference by this Court.

He submitted that there is ample evidence for conviction of A-2. He has referred to the eye witnesses to the offence, who had undergone lengthy cross examination and whose evidence was found to be reliable by the trial court as well as by the High Court. He also referred to the recovery of a knife with blood stains at the instance of A-2. He also referred to the evidence which made it clear that A-2 had committed an offence u/s 449 of the IPC by committing house-trespass so as to commit an offence punishable with death and, in fact, murder of the deceased was committed by A-2 in company of other accused. Thus, the learned Counsel for the State submitted that the order passed by the High Court does not require any interference.

We have heard learned Counsel at length and have also gone through the records meticulously.

So far as the first submission with regard to giving different treatment to A-2 and A-4 is concerned, in our opinion, the submission made by the learned Counsel appearing for A-2 is not correct. Allegation against A-2 and A-4 is that upon entering the premises of PW-14 along with A-1 and A-3, they indiscriminately stabbed the deceased while the deceased was sitting and playing carom. When the deceased fell down, A-2 and A-4 held hands of the deceased and at that time A-1 and A-3 removed the head of the deceased. Thus, A-2 and A-4, along with A-1 and A-3 stabbed the deceased. Thereafter, they caught hold of the deceased and A-1 and A-3 removed the head of the deceased. At the instance of A-4, his knife has been recovered. According to the evidence, the knife which was alleged to have been used by A-4 did not have any blood stain on it. Version of the eye witnesses was to the effect that A-4 had also stabbed the deceased. In view of the fact that there was no blood on the knife which was alleged to have been used by A-4, the High Court gave benefit of doubt to A-4 and, therefore, A-4 has been acquitted by the High Court.

So far as A-2 is concerned, there is evidence of eye witnesses to the effect that after entering the premises of PW-14 along with others, he stabbed the deceased. The knife (M.O.-3) which has been recovered at the instance of A-2 has blood stains on it. Moreover, PW-1, PW-11, PW-14 and PW-19 have in unequivocal terms deposed having seen A-2 with a knife. Eye witnesses have clearly identified A-2 when he was stabbing the deceased. For the aforestated reasons, in our opinion, case of A-4 cannot be compared with that of A-2. In any case, there is ample evidence against A-2 which reveals that he was one of the persons who actively participated in the offence and, therefore, in our opinion the High Court did not commit any error while confirming conviction of A-2.

We have gone through the evidence of PW-1 who is one of the eye witnesses. He has stated that A-2 had entered the premises of PW-14 and had started stabbing the deceased. Similarly PW-19, another eye witness has also adduced evidence to the effect that A-2 had stabbed the deceased and when the deceased fell down he caught hold of hand of the deceased so as to enable A-1 and A-3 to cut the head of the deceased. There is also evidence to the effect that after committing murder, A-1 to A-3 had left the premises on a scooter driven by A-2 and his going on the scooter had been witnessed by PW-11.

The aforesaid evidence has been duly appreciated by the trial court and re-appreciated by the High Court and both the courts have come to a conclusion with regard to guilt of A-2. We do not see any reason to have a different view than the one which has been taken by the trial court and confirmed by the High Court.

For the aforestated reasons, we do not see any reason to set aside the order convicting A-2. The appeal is, therefore, dismissed.