THE HON'BLE SRI JUSTICE D.S.R.VARMA AND THE HON'BLE SRI JUSTICE RAJA ELANGO Criminal Appeal No.1765 of 2006 Date: 06-4-2010 Between Chelluri Pandiyya @ Pandu and another … Appellants/Accused 1 and 2 and State of A.P., Rep. by P.P., High Court, Hyderabad … Respondent THE HON'BLE SRI JUSTICE D.S.R.VARMA AND THE HON'BLE SRI JUSTICE RAJA ELANGO Criminal Appeal No.1765 of 2006 Judgment: (per Raja Elango, J.) Appeal arises out of the conviction and sentences imposed by the learned IV Additional Sessions Judge, Kakinada, East Godavari district against the appellants/accused 1 and 2 for the offences under Sections 302 and 325 of IPC. They were sentenced to undergo imprisonment for life and also to pay a fine of Rs.500/- each, in default to suffer simple imprisonment for a period of one month for the offence under Section 302 of IPC. They were also sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.200/- each, in default to suffer simple imprisonment for a period of 15 days for the offence under Section 325 of IPC. 2. The case of prosecution projected by the Investigating Agency is as follows: P.W.1 is the son, P.W.5 is the daughter-in-law, P.W.6 is the grandson, P.W.7 is a relative and P.W.8 is the wife of the deceased. The deceased, the accused and the material witnesses were living in Gokiwada village, Pithapuram Mandal. Two months prior to the date of incident, accused No.1, P.Ws.1, 9 and 10, and eight others went to Gouripatnam for coolie work. They stayed there for one and half months for attending coolie work. In the middle of the period, P.Ws.9 and 10 and two others left to their village. The coolie amount payable to the persons left in the middle were given to accused No.1 i.e., an amount of Rs.4,800/-. But, after return to the village, accused No.1 did not pay the said amount to the respective persons. Then the above four persons came and asked P.W.1 for their coolie work because P.W.1 had taken them to Gouripatnam to the work. On 22-5-2003 at about 7 p.m., P.W.1 went to the house of accused No.1 and standing in front of his house asked for the amounts payable to the above coolies. Then accused No.1 answered “Ivvanu nee dikkunnachota cheppuko” and so saying both the accused came with sticks and beat P.W.1 on his head, right little finger and also on his back. On seeing it, the deceased came to his rescue. Then both the accused beat the deceased with sticks on his head, forehead, left cheek and knees. Then the deceased fell unconscious due to the said injuries. The same was witnessed by P.Ws.2, 4, 9 and 10 and others. Then the injured was brought in an auto to the Government General Hospital, Kakinada. The accused also received injuries during this scuffle. On 22-5-2003 K.Viswanadha Rao, Head Constable, Pithapuram Police Station, who received medical intimation, went to the hospital and recorded the statement of P.W.1 as Ex.P-1. On the basis of Ex.P-1, he registered a case in Crime No.81 of 2003 under Section 324 read with Section 34 of IPC and issued FIR as Ex.P-13. On the same day, the Head Constable received death intimation from the hospital and altered the Sections of law to 302 and 324 read with Section 34 of IPC. Ex.P-15 is the altered FIR. On 23-5-2003 P.W.15 C.I. of Police, who took up the investigation, visited the scene of offence, prepared the scene of observation report Ex.P-6, drew rough sketch Ex.P-16 and seized M.Os.1 and 2 in the presence of P.W.12 and another. P.W.15 also got photographed the scene of offence. On 23-5-2003 P.W.15 held inquest over the body of deceased in the presence of P.W.12 and others. Ex.P-7 is the inquest report. During the inquest, P.W.15 seized M.Os.5 and 7 from the body of deceased and also examined and recorded the statements of P.Ws.1 to 8. On the same day, P.W.15 went to Gokiwada village and recorded the statements of P.Ws.9 and 10 and two others, and also recorded the statement of P.W.11. On 23-5-2003 at about 3 p.m., P.W.14 Professor of Forensic Medicine, Kakinada conducted autopsy over the body of deceased and opined that the cause of death was due to injury to the brain due to fractures of skull head injury. Ex.P-11 is the post-mortem certificate. On 23-5-2003 at about 1.05 a.m., P.W.13 examined P.W.1 and issued wound certificate as Ex.P-10. Thereafter, P.W.15 arrested the accused and seized M.O.3 from accused No.1 and M.O.4 from the possession of accused No.2. Then P.W.15 sent the material objects to the Forensic Science Laboratory. Ex.P-18 is the FSL Report. After completion of the investigation and after collecting the required documents, P.W.15 filed the charge-sheet. 3. After filing of the final report, the learned Sessions Judge examined P.Ws.1 to 15 and marked Exs.P-1 to P-18 and after evaluating the evidence adduced by the prosecution, convicted the appellants herein, as stated above. 4. The learned Sessions Judge relied on the evidence of P.W.1 injured witness and P.W.5 wife of P.W.1, who is also an eyewitness to the occurrence and also placing reliance on the medical evidence, convicted the accused, as stated above. 5. Heard both sides. 6. The learned counsel for the appellants after arguing for some time confined his argument for modification of the conviction by submitting that the entire allegation is a.dmitted to be true and the same will attract only the offence under Section 304, Part II of IPC. 7. The learned counsel submitted the following points for the same: (a) The injured witnesses and the deceased went to the place of the appellants herein and questioned the appellants. Hence, admittedly the occurrence is near the place of the appellants herein; (b) The entire occurrence took place after a sudden quarrel and scuffle between the prosecuting party and the appellants herein; (c) The appellants are also not in possession of any dangerous weapons and allegedly they caused the injuries with wooden sticks; (d) The appellants also suffered injuries in the hands of the prosecuting party. 8. This court perused the entire evidence adduced by the prosecution. As stated by the learned counsel for the appellants, the entire occurrence took place in between the houses of the appellants and the witnesses herein. The said occurrence also was due to a small dispute between the appellants and the witnesses in sharing the coolie amount, for which P.W.1 and the deceased entitled to. Admittedly, there was a quarrel and scuffle between the parties and it is the admitted case of the prosecution that the accused also suffered injuries. 9. The perusal of the evidence would clearly reveals that the appellants assaulted the injured witnesses without any premeditation, and in a sudden quarrel, the entire occurrence took place. In view of the same, the offence committed by the appellants herein is “culpable homicide not amounting to murder” since there is no intention on the part of the appellants herein to commit the murder. At the same time, the appellants had knowledge that the said injuries would cause the death of deceased concerned. Hence, the appellants herein can safely be convicted for an offence punishable under Section 304, Part II of IPC. 10. The learned Public Prosecutor on behalf of the State has also fairly conceded that the offence would attract only under Section 304, Part II of IPC. 11. Accordingly, the conviction passed by the trial Court against the appellants/accused 1 and 2 for the offence under Section 302 of IPC is hereby modified as the one under Section 304, Part II of IPC and the sentence is also accordingly modified to 5 (five) years and the period of imprisonment already undergone by the appellants/accused 1 and 2 is given set off. As far as the injuries caused to P.W.1, rightly the appellants were convicted under Section 325 of IPC and the conviction and sentence of 3 (three) years is confirmed. Both the sentences are directed to run concurrently. 12. With the above modification, the appeal is allowed in part. __________________ JUSTICE D.S.R.VARMA ___________________ JUSTICE RAJA ELANGO 06th April, 2010. Ak THE HON'BLE SRI JUSTICE D.S.R.VARMA AND THE HON'BLE SRI JUSTICE RAJA ELANGO Criminal Appeal No.1765 of 2006 (Judgment of the Division Bench delivered by RE, J.) 06th April, 2010. (Ak)