THE HON’BLE SRI JUSTICE V ESWARAIAH AND THE HON’BLE SRI JUSTICE V SURI APPA RAO CRIMINAL APPEAL NO. 1098 OF 2007 Between: … Petitioner And … Respondent Counsel for the Petitioner: Counsel for respondents: The Court made the following ORDER: THE HON’BLE SRI JUSTICE V ESWARAIAH AND THE HON’BLE SRI JUSTICE V SURI APPA RAO CRIMINAL APPEAL NO. 1098 OF 2007 ORDER : (Per Sri Justice V Suri Appa Rao) This Criminal Appeal is filed by the State, challenging the judgment dated 4.8.2004 in S.C. No. 324 of 2000 passed by the learned Sessions Judge, Nellore, whereby the accused/respondent herein was found guilty of offence under section 304 Part II of IPC and convicted under Section 235 (2) of Criminal Procedure Code and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.1000/- and in default to suffer simple imprisonment for one year. According to the prosecution, the accused and the deceased are residents of Thopugunta Arundathiyawada of Kaluvoi Mandal. During the Assembly Elections-1999, the accused supported Kommi Lakshmaiah Naidu belonging to Telugu Desam Party, whereas, the deceased supported Bollineni Krishnaiah Naidu of Congress (I) Party, as such, the accused being supporter of rival party, developed ill feelings against the deceased. While so, on 2.9.1999 at about 12.30 p.m., when the deceased and others were erecting flag poles for hoisting Congress (I) party flags near school building in Arundathiyawada, the accused came there, objected for raising Congress (I) flags in the village and declared that no one should raise Congress flags in Arundathiyawada village as per the orders of Kommi Lakshmaiah Naidu (contesting candidate of TDP party) and there took some altercation between them, thereupon the accused became wild, took a knife and hacked on the left side of the neck below the left lower jaw of the deceased, who fell down with bleeding injury and the accused ran away from the spot. Then, the persons who were attending the flag erecting work, took the deceased to the hospital and on the way the deceased died. This incident was witnessed by P.Ws 1 to 3 and others and based on the report submitted by P.W.1, the Inspector of Police registered a crime under section 302 of Indian Penal Code. The Circle Inspector of Police Mr. D Calab Ibraham who was examined as P.W.8 conducted inquest over the body of deceased, examined the witnesses, recorded their statements, seized the material objects in M.O.1 to M.O.5 i.e., Blood stained earth, controlled earth, blood stained shirt, blood stained towel, blood stained dhoti and blood stained drawer respectively and sent the body for post mortem examination. Dr.M Chenchaiah, Medical officer, Government Hospital, Rapur, who was examined as P.W.6 conducted the post mortem examination and opined that the deceased died due to shock and haemorrhage due to cutting of major blood vessels and cutting of trachea and issued post mortem certificate which is marked as Ex.P.4. The learned Sessions Judge, framed the charge under section 302 of Indian Penal Code, for which the accused pleaded not guilty and accordingly trial was conducted. The learned Sessions Judge on consideration of the evidence available on record by judgment dated 4.8.2004, convicted and sentenced the accused as stated supra. As against the said judgment the present appeal is filed by the State. Learned Public Prosecutor submitted that the accused has clear intention to cause the death of the deceased and has inflicted a major cut injury with knife on the vital part i.e., neck of the deceased and the prosecution in clear terms has proved the manner and attack on the deceased causing major injury resulting in death of the deceased and the Court below ought to have convicted the accused under Section 302 instead of Section 304-Part-II of Indian Penal Code. Therefore, it is prayed that the accused be convicted under Section 302 of IPC and sought for enhancement of sentence. However, on the other hand, Mr M Venkata Narayana appearing for respondent/accused supported the judgment of the Court below and submitted that there was no intention on the part of the accused to kill the deceased and unfortunately the incident took place due to sudden altercation and considering all the aspects, the learned Sessions Judge has rightly convicted and sentenced the accused, which judgment needs no interference by this Court. Heard both sides and perused the material available on record including the entire evidence. In order to prove the guilt of the accused, prosecution examined P.W.1 to P.W.8, marked Ex.P.1 to Ex.P7 and also marked material objects M.O.1 to M.O.6. and to prove that the death of the deceased is homicidal, the prosecution examined Medical Officer/P.W.6 Dr M Chenchaiah who conducted post mortem examination and the Inspector of Police/P.W.8 Mr.D.Calab Ibraham, who conducted inquest over the dead body of the deceased. According to P.W.6 the following injuries were found on the dead body. External Injuries :-- An incised wound on the left side of the neck, below the jaw, 15 cms X 5 cms X bone deep. Muscles, blood vessels, vertebra and trachea cut. Internal Injuries :-- head, scalp bones and Brain normal but pale. Thorax, heart empty, pale. Lungs pale. Abdomen: Stomach, partially digested food present. Intestines distended with gas. Liver pale, kidneys pale and bladder empty.” Thus, P.W.6 opined that the deceased would appear to have died due to shock and haemorrhage due to cutting of major blood vessels and cutting of trachea. Taking into consideration the inquest report in Ex.P.4, the evidence of P.W.6 and P.W.8 who conducted inquest over the dead body of the deceased, the prosecution was able to prove that the death of the deceased is homicidal. The next point for consideration is whether the accused is responsible for causing death of the deceased. Admittedly, the incident took place when the deceased was trying to erect poles for raising Congress (I) flags, which was objected by the accused stating that only Telugu Desam Party flags should fly in the village but not that of Congress (I) party flags, thus an altercation took place between them and the accused became wild and hacked the deceased with a knife on his neck and thereby caused a major injury on the vital part of the body of the deceased, which was witnessed by P.W.1 to 3. P.W.1 in his evidence stated that on 2.9.1999 at about 12.30 p.m. when they were erecting flag poles opposite to Elementary school for raising Congress (I) flags in connection with canvassing for Mr Krishnaiah Naidu who is contesting for the post of Member of Legislative Assembly from Congress (I) party, the accused came there and objected for erection of Congress (I) flag poles stating that only Telugu Desam Party flags should fly in the village and when the deceased said that as per the wish of the party workers, the flags can be erected and thereupon the accused hacked the deceased with a knife on his neck and deceased fell down with bleeding injury. He also stated that the said incident was witnessed by himself, P.W. 2 and 3. P.W.2 is son of the deceased, he has supported the prosecution case about the manner of attack by accused on the deceased. But his version was disbelieved by the learned Sessions Judge on the ground that his name was not mentioned in the complaint submitted by P.W.1 or in the statement recorded under Section 161 of Criminal Procedure Code. Another witness who witnessed the incident along with P.W.1 and 2 is Mr Gurram Penchalaiah who was examined as P.W.3. He has also supported the prosecution case and in his evidence stated that he was an eye witness to the incident and that on the date of offence at about 12.30 p.m., the deceased, himself and others were erecting flag poles for raising Congress (I) flags in connection with canvassing being made by Mr Krishnaiah Naidu contesting MLA for that assembly constituency, for which the accused objected and hacked the deceased with a knife on his neck and ran away with the knife proclaiming ‘Telugu Desam Party ki Jai’, that the deceased fell down with bleeding injury and he was shifted to Government Hospital in tractor and on the way he succumb to the injuries. During the cross examination, it is suggested to P.W.1 to 3 that while the deceased was removing the soil from drench hole, accidentally the crow bar fell upon his heck and deceased received injuries. However, P.W.6 Medical Officer in his evidence clearly stated that injury found on the person of the deceased was possible only with a sharp edged knife and not possible by accidental fall of a crow bar. Thus, the evidence of P.W.1 to 3 supported by medical evidence of P.W.6 is sufficient to prove the manner of attack caused by the accused on the vital part of the deceased. Admittedly, the cause of the death of the deceased was due to shock and haemorrhage due to cut of major blood vessels and cut of the trachea. It is also admitted fact that after suffering the injury, the deceased survived for some time and later on the way to hospital, he died. None of the prosecution witnesses stated that they interfered and prevented the accused from attacking the deceased, thus it is clear that though accused was having opportunity to cause number of blows, but he has caused only one injury, which, unfortunately, resulted in cause of death of the deceased. Taking into consideration the evidence and the manner of attack, the learned Sessions has rightly convicted the accused under Section 304-Part II of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.1000/-and in default to suffer simple imprisonment for one year. Having regard to the facts and circumstances of the case and the evidence available on record, it can safely be said that the accused was properly punished for the offence and the judgment under appeal needs no interference. In the result, the appeal fails and the same is hereby dismissed. ______________ V.ESWARAIAH,J ________________ V SURI APPA RAO,J DATE: 9.2.2011 TVK THE HON’BLE SRI JUSTICE V ESWARAIAH AND THE HON’BLE SRI JUSTICE V SURI APPA RAO CRIMINAL APPEAL NO. 1098 OF 2007 Date: 9.2.2011