THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.999 OF 2004 DATED 7th DECEMBER, 2010. BETWEEN : Botcha Mohana Rao .. Appellant-accused and The State of A.P. ..Respondent THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.999 OF 2004 JUDGMENT: This is an appeal arising out of conviction and sentence imposed on the appellant in Sessions Case No.325 of 2002 by the Sessions Judge, West Godavari at Eluru, wherein the learned Sessions Judge acquitted the appellant for the offence under Section 302 of Indian Penal Code (for short ‘IPC’) but convicted him under Section 235 (2) Cr.P.C. and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1,000/-, in default to suffer simple imprisonment for two months, for the offence punishable under Section 304 Part I IPC. Prosecution case, in brief, is that on 03.08.2001 at about 8.00 p.m. the deceased and accused scuffled with each other near the telephone booth of P.W.1. After exchange of words, accused went away uttering to see his end. Thereafter, the mother of the accused went to the deceased and asked him as to why he beat the accused. While so, the accused brought a knife from his house, stabbed the deceased below his chest on the right side, inflicted a bleeding injury and fled away from the scene. While undergoing treatment, deceased succumbed to injuries. Hence, the case. In order to prove its case, Prosecution got examined PWs 1 to 15 and marked Exs.P.1 to P.18 apart from MOs 1 and 2. When examined under Section 313 Cr.P.C. accused denied the incriminating circumstances read over to him available in the evidence of prosecution witnesses. Though the accused did not choose adduce any oral evidence, he got marked Exs.D.1 and D.2 in his support. Heard. The learned Sessions Judge after evaluating the evidence convicted the accused for the offence under Section 304 Part I IPC deciding the issue that the accused was not having any intention to cause death, but he had the knowledge that the injury will cause death. When the learned Sessions Judge decided the issue that the accused was not having the intention to cause death but he had the knowledge that the injury will cause death, the act of the accused would fall only under Section 304 Part II IPC but not Section 304 Part I IPC. As such, the conviction passed by the learned Sessions Judge under Section 304 Part I IPC is not sustainable in law. Hence, the same is set aside and the appellant-accused is liable to be punished under Section 304 Part II IPC. Accordingly, the conviction is modified to one under Section 304 Part II IPC. As far as sentence of imprisonment is concerned, learned counsel for the appellant submits that the appellant is in jail for a considerable period. Further, taking into consideration, the manner in which the occurrence took place, size of the weapon used, the incident happened in the spur of moment, originally crime is registered for the offence under Section 324 IPC and the deceased died 10 days after the incident, this Court is of the view that some lenient view can be taken against the appellant in imposition of sentence. Accordingly, the sentence of imprisonment is modified to that of the period already undergone by the appellant. Remaining portion of the impugned judgment shall stand unaltered. With above modifications, the Criminal Appeal is disposed of. ________________________ JUSTICE RAJA ELANGO Dated : 07.12.2010 sur