THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.309 of 2007 23-04-2014 BETWEEN:
Desilanka Eswara Rao @ Pedda Nageswara Rao And Others …..Appellants/A.4 to A.5 AND State of A.P., Rep. by the Public Prosecutor, High Court of A.P., Hyderabad.
…..Respondent THIS COURT MADE THE FOLLOWING JUDGMENT: THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.309 of 2007 JUDGMENT:
The Criminal Appeal is preferred by the appellants/A.4 to A.6 against the Judgment dated 05.03.2007 passed in S.C.No.67 of 2006, by the Court of VIII Additional Sessions Judge, East Godavari at Rajahmundry, whereby the learned Judge convicted the appellants/A.4 to A.6 for the offence under Sections 307 IPC and 506 IPC and accordingly sentenced them to suffer rigorous imprisonment for a period of seven years each and to pay fine of Rs.1000/- (Rupees One thousand only) each, in default, to suffer simple imprisonment for a period of three months each, for the offence under Section 307 IPC; and to suffer rigorous imprisonment for a period of two years each and to pay fine of Rs.500/- (Rupees five hundred only) each, in default, to suffer simple imprisonment for a period of one month each, for the offence under Section 506 IPC.
The case of the prosecution, in brief, is as follows:
That the deceased and the accused are close associates and they are engaged in selling cinema tickets in black market. A.1 to A.6 are assistants of A.7. Deceased used to demand the accused, particularly A.7 to give share in the business. That on 17.08.2004 deceased along with A.1 to A.6 and some others attended function, in that the deceased consumed liquor and commented A.1 to A.6 heckling at their leader A.7. A.7 did not attend the function. When on 29.08.2004 between 9.30 p.m. and 9.45 pm, the deceased was busily involved in selling cinema tickets in black market, A.1 to A.7 beat him with iron rods indiscriminately with a view to kill him, and when P.Ws.1 to 3, P.Ws.4 and 5 tried to rescue the deceased, A.1 to A.6 injured them. The deceased was succumbed to injuries. Hence, a case was registered against A.1 to A.7 for the offences under Sections 147, 148, 302, 307, 324, 326, 506 read with 149 IPC and 144 IPC. After completion of the investigation, charge sheet was filed.
To substantiate the case of the prosecution, during the course of trial, P.Ws.1 to 20 were examined and Exs.P.1 to P.32 and M.Os.1 to 20 were marked. On behalf of the accused, no oral evidence was adduced but Ex.D.1 to D.5 were marked.
P.W.1 is the de facto complainant and the injured. He deposed that when A.4 to A.6 beat P.W.3, he along with P.W.2 intervened, and that A.4 to A.6 also beat him and P.W.2 with iron rods. When he went to deceased, he found the deceased with bleeding injuries on the road and injury on the head of P.W.4. He further deposed that when he went to the deceased, he found A.1 to A.3 were beating the deceased with iron rods on head. P.W.2 also deposed that when A.4 to A.6 were beating her son, P.W.3, she intervened and that they beat her with iron rods. P.W.3 and P.W.4 also deposed on the same lines of P.Ws.1 and 2. P.W.5, who is also one of the injured, P.W.8, P.W.10 and P.W.11 turned hostile and have not supported the case of prosecution. P.W.6, who is the wife of the deceased, deposed that she came to know that A.1 to A.7 are responsible for death of the deceased. P.W.7, who is the father of the deceased also deposed that he was informed that the deceased was killed by A.1 to A.7.
P.W.9 also deposed that he was informed that the deceased was killed by A.1 to A.6. P.W.12 is one of the mediators and he deposed that he wrote Exs.P.12 and P.13, scene of observation reports, including the columns in Ex.P.14, inquest report, as per the instructions of the police. P.13 is one of the attestors to Ex.15, mediators’ report-cum- confessional statements of A.1 to A.7. P.W.14 deposed that when he went to the Police Station to see his relatives, he was asked to draft mediator’s report, he signed mediator’s report for seizure of shirts.
P.W.15 is the then Head Constable, who has received the MLC intimation from Government Hospital, Rajahmundry for the injuries sustained to P.Ws.2 and 3. P.W.16 is another Head Constable, who advised P.Ws. 2 and 3 to go to hospital when they were coming to police station with bleeding injuries. P.W.17 is the then Inspector of Police, who found the deceased lying on the road with severe bleeding injuries in a pool of blood, he shifted the deceased to the Government Hospital, where the deceased was declared dead and recorded the statements of the injured. He filed charge sheet after completion of the investigation. P.W.18 is Doctor, who conducted Post Mortem on the deceased and gave report Ex.P.27. P.W.19 is the Civil Asst. Surgeon, who examined P.Ws.2, 3, 4 and 5, and gave wound certificates Exs.P.28, 29, 32 and 31 respectively. P.W.20 is the then Sub Inspector of Police, who received the complaint Ex.P.1 from P.W.1 and issued F.I.R.
On appreciation of the above evidence, the trial Court acquitted A.1 to A.7 for the offence under Section 302 IPC. However, the trial Court found the appellants/A.4 to A.6 guilty and accordingly convicted for the offences under Sections 307 and 506 IPC and accordingly sentenced them as stated above. Aggrieved by the same, the appellants / A.4 to A.6 have preferred the present Criminal Appeal.
Heard the learned counsel for appellants/A.4 to A.6 and the learned Public Prosecutor and perused the records.
The point for consideration is whether the act of the appellants/A.4 to A.6 would attract an offence under Section 307 IPC?
The learned counsel for appellants/A.4 to A.6 submits that even if the entire case of the prosecution is true, the act of the appellants/A.4 to A.6 would not attract an offence under Section 307 IPC and would attract an offence under Section 326 IPC or Section 324 IPC, as the accused do not have any intention to kill P.Ws.2 and 3.
The evidence of P.Ws.1, 2 and 3 show that the accused caused injuries to them with iron rods. They deposed that when A.4 to A.6 was beating P.W.3, P.W.1 and P.W.2 intervened and then A.4 to A.6 beat them. It shows that, it is not the intention of the appellants / A.4 to A.6 to kill any of the witnesses. By any stretch of imagination, it cannot be said that the appellants/A.4 to A.6 have any intention either to kill P.W.3 or to kill P.Ws.1 and 2. If it is the intention of the appellants/A.4 to A.6 to kill P.Ws.1 to 3, nothing prevented them from doing so, as there is no evidence on record that they were prevented from further assaulting. Even according to P.Ws.1 to 3, the appellants after causing injuries ran away from the place of occurrence. Hence, the appellants/A.4 to A.6 cannot be attributed that they have any intention to kill P.Ws.1, 2 and 3.
It is to be noted that to convict a person under Section 307 IPC, the prosecution has to prove that the accused has the intention to kill.
In the present case, the prosecution has failed to prove that the appellants/A.4 to A.6 have any intention to kill P.Ws.1, 2 and 3, and as such, the act of the appellants/A.4 to A.6 would not fall under Section 307 IPC, and hence, the appellants/A.4 to A.6 cannot be convicted for the offence under Section 307 IPC. However, the appellants/A.4 to A.6 had caused injuries to P.Ws.1, 2 and 3, which are of grievous nature. The act of the appellants/A.4 to A.6 comes under the scope of Section 326 IPC, and hence, the appellants/A.4 to A.6 are liable to be punished for the offence under Section 326 IPC.
In view of the above discussion, the conviction and sentence imposed by the Court below against the appellants/A.4 to A.6 for the offence under Section 307 IPC is modified to that of Section 326 IPC.
On perusing the entire record, this Court is of the view that there is nothing on record to take a different view from that of the Court below insofar as the conviction against the appellants/A.4 to A.6 for the offence under Section 506 IPC.
Learned counsel for the appellants/A.4 to A.6 submits that the accused and P.Ws.1 to 3 are close associates, that the appellants/A.4 to A.6 do not have any criminal background and they are aged below 25 years at the time of commission of offence, and as such, a lenient view may be taken while imposing sentence of imprisonment.
Considering the facts and circumstances of the case and also in view of the submissions made by the learned counsel for the appellants/A.4 to A.6, this Court is inclined to reduce the sentence of imprisonment for the offences under Sections 326 IPC and 506 IPC imposed against the appellants/A.4 to A.6 for a period of six months on each count.
In the result, the conviction recorded by the learned trial Judge against the appellants/A.4 to A.6 for the offence under Section 307 IPC is modified to Section 326 IPC. The conviction for the offence under Section 506 IPC is confirmed. The sentence of imprisonment for the offences under Sections 326 IPC and 506 IPC is reduced to that of six months rigorous imprisonment under each count. The fine amounts stand confirmed. Both the sentences shall run concurrently.
The period already undergone by the appellants/A.4 to A.6 shall be given setoff under Section 428 of Code of Criminal Procedure.
The appellants/A.4 to A.6 are directed to surrender before the Court concerned on or before 10th March, 2015 to serve the remaining sentence. In default, the Court concerned shall proceed in accordance with law.
Accordingly, the Criminal Appeal is partly allowed. Miscellaneous applications, if any pending in this appeal, shall stand closed.
JUSTICE RAJA ELANGO 23.04.2014 pln