Shaikh Karimullah @ Babu v. State of A.P. , (SC) BS185779
SUPREME COURT OF INDIA

Before:- Dr. Arijit Pasayat and Dr. Mukundakam Sharma, JJ.

Criminal Appeal No. 223 of 2009. (Arising out of SLP (Crl.) No. 6657 of 2007). D/d. 6.2.2009.

Shaikh Karimullah @ Babu and Ors. - Appellants

Versus

State of A.P. - Respondent

For the Appellant :- Mr. Chanchal Kumar Ganguli, (SLCSC), Advocate.

For the Respondents :- Mr. Venkatanarayana, Sir Advocate, Mrs. D. Bharathi Reddy, Ms,Altaf Fatima and V. Prabhakar Rao, Advocates.

Indian Penal Code, 1860, Sections 300, 325 and 34 - Murder - Allegation that accused persons including appellant caused fatal injuries to the deceased - All eye-witnesses except one stated that accused only gave fist blow - No charge framed under Section 34, hence it is not applicable - Conviction of appellant altered from Section 302 to one under Section 325.

[Para 7]

JUDGMENT

Dr. Arijit Pasayat, J. - 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 'Indian Penal Code'). However A-1 to A-3 were found guilty for the offence under Section 302 Indian Penal Code 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 Indian Penal Code. 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:

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 Section 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.

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 Indian Penal Code and not Section 302 Indian Penal Code. Custodial sentence of three years would meet the ends of justice.

8. The appeal is allowed to the aforesaid extent.

Order accordingly.