Judgement

SINHA J.- The main question for determination in this appeal by special leave is whether and, if so, how far non-compliance with the provisions of Ss. 173 (4) and 207A (3) of the Code of Criminal Procedure, has affected the legality of the proceedings and the trial resulting in the conviction of the appellant. The appellant was tried by the learned Sessions Judge of Karimnagar in what used to be the State of Hyderabad (now part of the State of Andhra Pradesh), under S. 302 of the Indian Penal Code, for the murder of his brother Baga Rao, and sentenced to death.

The conviction and the sentence were affirmed by the High Court of Judicature of Andhra Pradesh at Hyderabad on appeal and on a reference by the learned Sessions Judge. Along with the appellant three other persons named Lingaro the appellant s brother, Narsingrao, the nephew of the appellant and son of Lingaro aforesaid and Mahboob Ali, said to be a close friend of the other accused, were also tried under S. 302, read with Ss. 34 and 109 of the Indian Penal Code, and convicted and sentenced to imprisonment for life.

Their appeals also were heard along with the appeal preferred by the appellant and by a common judgment, the High Court dismissed all the appeals and confirmed the convictions and sentence passed against all the four accused persons. This appeal concerns only Narayan Rao who has been sentenced to death by the Courts below.

2. The facts of the case are short and simple. The murdered man Baga Rao who was an excise contractor, had separated from his other brothers aforesaid, and had partitioned the family lands. There were differences amongst the brothers which had led to arbitration proceedings a few months earlier, which did not satisfy Baga Rao. On the Saturday previous to the Monday 26th December 1955 which was the day of the occurrence, there was a quarrel between Baga Rao on one side and Lingarao and Narsingrao on the other in the field said to belong to Baga Rao.

The parties reside in village Kollamaddi taluk Sircilla, district Karimnagar. At about 7 a.m., on the morning of 26th December 1955, Baga Rao had been proceeding from his village towards Nirmal side. The accused who appears to have been lying in wait for Baga Rao, came running from behind and the appellant fell upon Baga Rao with his knife. The other accused persons caught hold of Baga Rao and the appellant inflicted several injuries on his person with his knife (M.O.13.).

At first, Baga Rao got himself released from the grip of Narsingrao but the latter chased him and overtook him. All the accused over-powered him by catching hold of the different parts of his body, and the appellant stabbed him in the regions of the neck, abdomen, thigh and other parts of his body, the fatal injuries being in the neck and the abdomen. At the time of the occurrence, P.W. 1, father s brother of the appellant who also was proceeding towards Nirmal, saw most of the occurrence and then, out of fear, hid himself in a hut nearby.

P.W. 2 - a boy of about 12 years-a student of 4th standard in a Government school, was also proceeding in that direction that morning and saw the whole occurrence from beginning to end from a short distance of a few yards. This young boy claimed the murdered Baga Rao as his maternal uncle, stating that his mother is the sister of Baga Rao. But the wife of the murdered man P.W. 6. stated in cross examination that P.W. 2 - Ramchander Rao- is distantly related to her husband and that he is not the son of her- husband s sister.

The father of the murdered man Chatriah, aged about 85 years, who has been examined as defence witness No 1, disclaimed all relationship with the said P.W. 2, but stated that he is related to Dharmiah, P.W. 1, who is no other than his full brother. Chatriah, the father, had been examined to support the defence suggestion that it was P.W. 1, Dharmiah Rao and his son who got Baga Rao murdered and falsely implicated the accused persons.

That evidence has naturally not been