IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2506 of 2004 DATE: 30.08.2011 Between: Sykam Sydulu and others …… Appellants And The State of A.P rep. by Public Prosecutor. …..Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2506 of 2004 JUDGMENT : The appellants 1 to 4/A-1 to A-4 along with two others were charged by the lower Court for the offence under Section 302/34 I.P.C. Ultimately, after trial, the lower Court found the appellants/A-1 to A-4 guilty under Section 325 I.P.C and sentenced them to rigorous imprisonment for three years and fine of Rs.500/- each; and acquitted A-6. The case against A-5 stood abated due to his death. Questioning the said judgment A-1 to A-4 filed this appeal. 2) A-1 to A-3 are sons of A-4. Genesis for the quarrel which took place on 19.04.2000 at about 9.30 A.M was the dispute between P.W-3 and his wife Basava Punnamma. The deceased Bikshalu was father of P.Ws 1 and 2 and elder brother of P.W-3. The said disputes between P.W-3 and his wife were only on petty matters. During quarrel between P.W-3 and his wife, P.Ws 1 and 2 interfered and thereafter the deceased also interfered. A-1 is co-brother of P.W-3. A-1 to A-4 also interfered in the dispute. It is evidence of P.Ws 1 to 3 that A-1 to A-4 beat the deceased and kicked the deceased with legs and hits and also poked on his chest. P.W-4 is Viyanka of the deceased. The offence took place in front of his house. His evidence also to the effect that the accused made P.W-1 to fell down and beat him and that when the deceased went there, the accused fell the deceased down and beat him with hands. Subsequent to the offence which took place at 9.30 A.M, all the persons dispersed from the scene and the deceased felt chest pain. Therefore, P.W-1 went to P.W-5 who is native registered medical practitioner in the village and on his advice purchased Combiflam tablet and gave the same to the deceased. Ultimately, the deceased died by about 1.00 P.M on the same day. Thereupon, P.W-1 gave Ex.P-1 report to P.W-9 who is the head constable in Kollipara Police Station. He registered Ex.P-1 as case in Crime No.23/2000 under Section 174 Cr.P.C and issued Ex.P-6 F.I.R. He also examined scene of offence under the cover of Ex.P-7 observation report. P.W-10 Inspector of Police, Tenali Rural Police Station took up further investigation in the case and conducted inquest and sent dead body for post mortem examination. P.W-6 is the Deputy Civil Surgeon in Area Hospital, Tenali who conducted post mortem examination on dead body of the deceased and gave Ex.P-4 post mortem certificate and after receiving F.S.L opinion and forensic doctors gave final opinion to the effect that the deceased appear to have died of multiple injuries. 3) The lower Court considered oral evidence and medical evidence let in by the prosecution and came to the conclusion that it is not a case either under Section 302 I.P.C or under Section 304 I.P.C and finally concluded that Section 325 I.P.C attracts facts of this case. It is contended by the appellant’s counsel that no independent witnesses were examined by the prosecution though P.W-1 named some of the independent witnesses in his evidence as the persons who came to the scene and supported both the parties. Simply because some witnesses named by P.W-1 not examined either during investigation or during trial, it cannot be a ground for disbelieving the prosecution case. In this case not only P.Ws 1 to 4 but also A-1 to A-4 are all closely related to each other. Therefore, it cannot be said that P.Ws 1 to 4 were antagonistic towards A-1 to A-4. There was no reason for any grouse for P.Ws 1 to 4 against A-1 to A-4. It is further contended by the appellant’s counsel that none of P.Ws 1 to 4 gave any specific overt acts against the deceased and that all the witnesses deposed as if A- 1 to A-4 beat and kicked the deceased, any omnibus manner. When it is a case of simultaneous beating by all the accused 1 to 4, the question of the witnesses observing or analysing the overt acts of A-1 to A-4 may not arise. Originally the dispute was only a small dispute between the parties and everybody dispersed after the dispute. No report was even given after 9.30 A.M before 1.00 P.M. It is only after the deceased died, P.W-1 went to the police station and gave Ex.P-1 report during evening of the same day. 4) Evidence of P.W-6 and Ex.P-4 post mortem certificate reveal that there were swelling and blackening of face, neck and also blackish contusion of 1 ½ inch X 1 inch over upper part of the abdomen. Internal examination showed that there was rupture of spleen. The said external injuries coupled with internal damage to the spleen caused death of the deceased. It is contended by the appellants’ counsel that there is no evidence as to who out of A-1 to A-4 caused the injury on abdomen resulting in rupture on spleen. Since it is a cumulative attack of A-1 to A-4 against the deceased with common intention, each of A-1 to A-4 has to face consequences for the total injuries caused to the deceased and the result ensured therefrom. 5) It is contended by the appellants’ counsel that the deceased was sickly person and that he was suffering from chest pain since prior to the date of offence. Evidence of P.W-5 who is the native doctor reveals that the deceased was brought to him twice, in the first instance few months back and on the second occasion about 10 days prior to the offence with complaint of chest pain. P.W-5 further says that though he gave some treatment to the deceased for chest pain, he advised the deceased to take better treatment by going to expert doctor. In this case the deceased did not die due to chest pain or injury to chest or heart or lungs. The forensic experts’ report coupled with pathological report showed that the deceased did not die of injury to chest or heart. Therefore, previous medical record of the deceased of having chest pain or even heart trouble, has no bearing in this case. 6) It is contended that at best the offence is only under Section 323 I.P.C and will not attract Section 325 I.P.C as only hands and legs were used against the deceased as weapons. That is the reason why Section 325 I.P.C was invoked by the lower Court and not Section 326 I.P.C. If there were only external injuries, the question would be different. In this case apart from the external injuries including on abdomen, there is rupture of spleen which is a grievous injury. Therefore, the lower Court rightly found the accused guilty of the offence under Section 325 I.P.C. 7) It is contended by the appellants’ counsel that imposing sentence of imprisonment of three years is harsh. In my opinion, though the sentence is not harsh, it is on higher side. The lower Court took note of end result of the offence that there was death of an individual and therefore, preferred to impose higher punishment on the accused. After finding the accused guilty of offence under Section 325 I.P.C only, end result of the offence should not have been taken into account by the lower Court while determining the sentence pattern. Having regard to external and internal injuries caused to the deceased, I am of the opinion that imprisonment for one year would be appropriate. 8) In the result, the appeal is dismissed, but altering sentence of imprisonment from three years to one year. _______________________________ SAMUDRALA GOVINDARAJULU, J August 30, 2011 ksh