IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENT SECOND DAY OF APRIL TWO THOUSAND AND TEN PRESENT HON’BLE SRI JUSTICE G.V.SEETHAPATHY Crl.A.No.895 OF 2004 Between:- Madduri Sudhakar Reddy …Appellant A n d S.H.O., Addakula Police Station, Mahabubnagar District and State Rep. by its Public Prosecutor, High Court of A.P., Hyderabad. …Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRL.A.No.895 OF 2004 JUDGMENT: This appeal is directed against the judgment dated 18-03-2004 in S.C.No.566 of 1999, on the file of the II- Additional Sessions Judge (Fast Track Court), Mahabubnagar, wherein the appellant/A-2, along with A-1, A-3 and A-4, was convicted for the offence under Section 324 IPC and the appellant/A-2 sentenced to undergo rigorous imprisonment for six months and pay fine of Rs.1,000/-. A-3 was further held guilty of the offence under Section 352 IPC. A-1, A-3 and A-4 were, however, released under Section 4(1) of the Probation of Offenders Act on their executing a bond for Rs.5,000/- with two sureties each for a period of two years. 2. Heard the learned counsel for the appellant/A- 2 and the learned Additional Public Prosecutor for the respondent-State. Perused the records. 3. The prosecution case is that on 04-12-1998 at about 04-00 p.m., the deceased was returning from his field to the house passing in front of the house of the accused. On account of cattle trespass, the accused picked up quarrel with the deceased and abused him and kicked him with legs and A-3 beat the deceased with aluminium plate causing injury on the left eyebrow and due to the kicking, the testicles of the deceased got damaged and he fell down and died. P.W.1 gave a complaint to the police on the next day i.e., 05-12-1998 and the same was registered as F.I.R in Cr.No.24 of 1999. After due investigation, police filed charge sheet alleging offence under Section 302 read with Section 34 IPC. All the accused appeared before the trial Court and denied the offence and pleaded not guilty to the charge framed under Section 302 read with Section 34 IPC. 4. In support of their case, the prosecution examined P.Ws.1 to 8 and marked Exs.P-1 to P-7 and M.O.1. No oral or documentary evidence was adduced on behalf of the accused. 5. On a consideration of the material available on record, the trial Court found the A-1, A-2 and A-4 guilty of the offence under Section 324 IPC while A-1, A-3 and A-4 were released under the provisions of the Probation of Offenders Act. A-2 was sentenced to undergo rigorous imprisonment for six months and pay fine of Rs.1,000/- for the offence under Section 324 IPC. Aggrieved by the same, the present appeal is preferred by appellant/A-2. 6. As seen from the evidence on record, the only allegation made against appellant/A-2 was that he kicked the deceased with legs. There is absolutely no allegation to the effect that the deceased was assaulted by appellant/A-2 with any weapon. Admittedly, even according to the prosecution, the deceased died of heavy intoxication on account of consumption of excessive alcohol and the medical evidence is also to the same effect. The death of the deceased is not due to the alleged assault by the accused. The specific allegation against A-3 was that he beat the deceased with aluminium plate- M.O.1. The allegation against the other accused is that they kicked the deceased. Even the evidence of P.Ws.2 and 3, the eyewitnesses to the occurrence, is to the effect that A-3 kicked the deceased. 7. Under those circumstances, the conviction of the appellant/A-2 for the offence under Section 324 IPC is not sustainable. In view of the overt act alleged and proved against the appellant/A-2 that he only kicked the deceased with legs, the ingredients of the offence under Section 323 IPC alone are attracted but not Section 324 IPC. Accordingly, the appellant/A-2 is found guilty of the offence under Section 323 IPC and is convicted for the same. It is also considered that the ends of justice would be met by deleting the sentence of imprisonment of rigorous imprisonment for six months imposed against A-2 and confining the same to the sentence of fine of Rs.1,000/-, which is said to have been paid. 8. In the circumstances, the impugned conviction and sentence recorded against the appellant/A-2 are modified accordingly as stated above. 9. In the result, subject to the above modification in conviction and sentence, the criminal appeal is dismissed. ____________________ G.V.SEETHAPATHY, J 22nd April, 2010 Lrkm.