THE HON'BLE SRI JUSTICE D.S.R.VARMA AND THE HON'BLE SRI JUSTICE RAJA ELANGO Criminal Appeal No.340 of 2008 Date: 21.04.2010 Between : Yericherla Yella … Appellant And The State of Andhra Pradesh, Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. … Respondent THE HON'BLE SRI JUSTICE D.S.R.VARMA AND THE HON'BLE SRI JUSTICE RAJA ELANGO Criminal Appeal No.340 of 2008 ORAL JUDGMENT: (per the Hon’ble Sri Justice Raja Elango) When the matter came up for hearing, Sri B. Vijay Bhaskar Kakunoor, learned counsel appearing for the appellant-accused seeks for an adjournment. This Court refused the same on the ground that the matter was entrusted to him by the A.P. High Court Legal Services Committee, Hyderabad, to defend the accused and there is no justification in asking for an adjournment. Hence, we dis-engage Sri B. Vijay Bhaskar Kakunoor and entrust the matter to Ms. C.Vasundara Reddy. 2. Heard Ms. C.Vasundara Reddy, learned counsel appearing for the appellant-accused as well as the learned Public Prosecutor appearing for the respondent-State. 3. Appellant is the sole accused in the Sessions Case. 4. This Criminal Appeal is directed against the judgment, dated 03.01.2007, in Sessions Case No.300 of 2005, passed by the Sessions Judge, Prakasam District at Ongole, convicting the appellant-accused for the offence under Section 304 Part-I of Indian Penal Code (for brevity “IPC”) and sentencing him to undergo Rigorous Imprisonment for nine years and also to pay a fine of Rs.200/-, in default to undergo Simple Imprisonment for a period of one month. 5. The respondent-State also filed Criminal Appeal No.906 of 2009 against the acquittal of the accused under Section 302 IPC and the same was dismissed by a Division Bench of this Court, to which one of us (DSRV,J) is a party, by judgment dated 13.8.2009, confirming the judgment of the trial Court, convicting and sentencing the accused for the offence under Section 304 Part-I IPC. 6. The case of the prosecution, in brief, is that the accused is related to the deceased and habituated in drinking and picking up quarrels with others, that on the night of 20.4.2005 the accused quarrelled with his relatives P.Ws.7 and 8 and beaten them in connection with the obsequies of his grandmother and on that the deceased, who was related to both, immediately admonished and beat the accused with hands elderly for his faulty behaviour with P.Ws.7 and 8 and for that the accused felt offended and bore a grudge against the deceased to do away, that on the next day i.e., 21.4.2005 at about 2-00 p.m., when the deceased was taking lunch in his house at Hastinapuram, the accused came and with a pretext of talking to him personally, took him towards the Kunderu bank i.e., grazing field, that P.W.1, who saw the accused possessed knife suspected and followed them to the grazing fields situated on the bank of Kunderu stream, to where the accused took the deceased and he picked up quarrel with the deceased and due to this the deceased began to abuse the accused in filthy language and on that the accused grew wild and picked up the knife by saying that in addition to beating on the previous day the deceased is abusing him in filthy language and so saying the accused hacked the deceased on his left cheek, on the back of the head and also on the neck with intent to kill, the deceased, who sustained severe bleeding injuries, when began running back towards his house by requesting the accused not to kill him, that the accused chased the deceased and P.Ws.1 and 2 witnessed it, that on seeing the accused chasing the deceased with knife when P.Ws.3, 4, 5 and 11 and the neighbours questioned the accused as to his high- handed act, the accused also threatened them to kill brandishing the knife and in the meanwhile the deceased fell semi-conscious near the house of P.W.3, and P.W.5 along with neighbours shifted the deceased in an auto to Government Hospital, Chirala, for treatment and P.W.1 went to Chirala I Town Police Station and gave Ex.P-1 complaint and P.W.15 registered a case in Crime No.79 of 2005 for the offence under Section 307 IPC and took up investigation, that since the condition of the deceased is very serious, he was referred to Government General Hospital, Guntur and thereafter G.G.H., Vijayawada, and while undergoing treatment, the deceased died, that on receipt of the death intimation of the deceased, P.W.15 altered the section of law to that of Sections 302 and 506 IPC, P.W.17 took up further investigation. After completion of investigation and necessary formalities, P.W.16-Inspector of Police filed charge sheet against the accused for the offence under Sections 302 and 506 IPC. 7. When the charges were read over and explained to the accused, he pleaded not guilty and claim to be tried. 8. In order to bring home the guilt of the accused, the prosecution examined P.Ws.1 to 17 and got marked Exs.P-1 to P-17, besides marking MOs.1 to 7 material objects. On behalf of the accused, none were examined and no documents were marked. 9. The learned Sessions Judge, after evaluating the evidence adduced by the prosecution, more particularly, relying on the evidence of P.Ws.1 to 3 and also the mitigating circumstances, convicted and sentenced the accused for the offence under Section 304 Part-I IPC, as stated above. Aggrieved by the same, the appellant-accused has preferred the present criminal appeal. 10. Learned counsel appearing for the appellant-accused confined her arguments regarding the quantum of sentence, admitting the fact that the learned Sessions Judge has convicted and sentenced the accused on the basis of the mitigating circumstances and requested this Court to reduce the period of sentence. 11. We have perused the entire record and the evidence adduced by the prosecution. 12. The only question that falls for consideration in this appeal is whether the trial Court was justified in convicting and sentencing the accused for the offence under Section 304 Part-I IPC? 13. In order to convict and sentence the accused for the offence under Section 304 Part-I IPC, the learned Sessions Judge mainly relied on the mitigating circumstances viz., (1) the accused has no pre- determined idea to commit the crime; (2) the accused has not used any lethal weapon; (3) the accused caused injuries to the deceased on sudden provocation while a quarrel took place between him and the deceased; (4) motive is also flimsy in nature; and (5) the accused ran away from the place of occurrence after causing injuries to the deceased. 14. The entire occurrence took place in a spur of moment on the basis of the flimsy motive and also the accused caused injuries to the deceased with a small knife in a sudden provocation and the injured also died in the hospital only after four days. Further, the said motive attributed by the prosecution cannot be said to be a motive on the part of the accused to commit such a grave crime, like murder. Therefore, after elaborately discussing the evidence on record, the learned Sessions Judge had rightly convicted the accused for the offence under Section 304 Part-I IPC. 15. However, as regards the sentence imposed against the accused, taking into consideration the facts and further that the accused had already undergone imprisonment for five years, this Court is of the view that the period of sentence imposed against the accused can be reduced from nine years to six years. 16. In the result, the impugned judgment, dated 03.01.2007, in Sessions Case No.300 of 2005, passed by the Sessions Judge, Prakasam District at Ongole, convicting the appellant-accused for the offence under Section 304 Part-I I.P.C. is confirmed, however, reducing the sentence of Rigorous Imprisonment from nine years to six years. The fine amount shall remain unaltered. 17. The period of sentence already undergone by the appellant- accused during investigation, trial and after conviction shall be given set off under Section 428 Cr.P.C. 18. With the above modification, the Criminal Appeal is allowed in part. ________________________ JUSTICE D.S.R.VARMA _________________________ JUSTICE RAJA ELANGO 21.04.2010. Msr THE HON'BLE SRI JUSTICE D.S.R.VARMA AND THE HON'BLE SRI JUSTICE RAJA ELANGO Criminal Appeal No.340 of 2008 21.04.2010 (Msr)