HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL REVISION CASE No.1909 of 2003 DATE:09.03.2010 Between: Pothula Ashok … Petitioner and The State, through S.H.O., P.S. Veenavanka, Karimnagar District, rep. by P.P., High Court Of A.P., Hyderabad … Respondent HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL REVISION CASE No.1909 of 2003 ORDER: The petitioner herein was tried by the learned Assistant Sessions Judge, Huzurabad, for the offence punishable under Section 307 IPC in S.C.No.866 of 2000. During the course of trial, on behalf of the prosecution, P.Ws.1 to 5 were examined and Exs.P.1 to P.8 and M.O.1 were marked. No oral or documentary evidence was adduced on behalf of the defence. On a consideration of the evidence both oral and documentary, the learned Assistant Sessions Judge found the petitioner guilty of the charge for which he was tried, and accordingly, convicted and sentenced him to undergo simple imprisonment for a period of five years and to pay a fine of Rs.10,000/, in default, to suffer simple imprisonment for a period of six months, by judgment dated 24.03.2003. As against the said judgment, the petitioner filed Crl.A.No.48 of 2003 on the file of the II Addl. Sessions Judge, Karimnagar, who having heard both sides and gone through the material available on record, dismissed the appeal, by judgment dated 24.11.2003. Aggrieved thereby, the petitioner approached this Court and filed the present revision. 2. The case of the prosecution, in brief, is that on 17.03.1998 at about 21.00 hours the complainant-P.W.1 and her husband-P.W.2 were sleeping in front of their house, and at about 12.00 mid-night, P.W.2 shouted loudly, on which, P.W.1 woke up and found a bleeding injury on the head of P.W.2. When enquired, P.W.2 informed her that one Pothula Ashok-accused herein and another person hurled a stone on him and later he fell unconscious. On searching, P.W.1 found a stone on the bed of her husband-P.W.2 and immediately she shifted P.W.2 to the hospital with the assistance of her uncle. The accused had a dispute with P.W.2 in respect of boundaries of his land. Due to the said dispute, the accused developed grudge against P.W.2 and tried to kill him with the assistance of another person. Immediately after the incident, P.W.1 gave a complaint to the police against the accused. After completion of investigation, the police filed charge sheet against the accused for the offence punishable under Section 307 IPC. The plea of the accused is of total denial. 3. The main contention of the learned counsel for the petitioner is that as per the evidence of P.W.4, the doctor, the injuries sustained by P.W.2 are simple in nature, the courts below ought not to have convicted the petitioner for the offence punishable under Section 307 IPC. According to him, the alleged incident had not taken place and purely because of rivalry, this false case has been foisted by P.W.2 against the accused. 4. On the other hand, the learned Public Prosecutor appearing for the respondent-State opposed the said submission and stated that the courts below rightly concluded that the petitioner had committed the offence punishable under Section 307 IPC and it requires no interference by this Court. 5. The requirement to prove the guilt of an accused person for the offence punishable under Section 307 IPC is, whether the accused at the relevant point of time was having the required intention to kill. Apparently, there is a land dispute between the petitioner-accused and P.W.2. As per the evidence of P.W.2, on 17.03.1998 at about 11.30 p.m. while he was sleeping in front of his house along with his wife- P.W.1 and daughter, he heard some movement beside him and when he opened his eyes, he found the petitioner hurling a boulder-M.O.1 on him. He further stated that keeping in mind the dispute between them, the petitioner-accused threw the M.O.1-boulder on his head with an intention to kill him. If really the petitioner-accused had thrown a heavy stone like M.O.1 on P.W.2 with an intention to kill him, P.W.2 would have received serious and grievance injuries. But, as per the evidence of the doctor, who was examined as P.W.4, the injuries received by P.W.2 are simple in nature. Therefore, the theory of the prosecution that the petitioner committed the offence punishable under Section 307 IPC cannot be accepted. 6. However, from an overall analysis of the evidence of the prosecution witnesses, particularly the evidence of the doctor-P.W.4, apparently there are injuries on the body of P.W.2 and they are simple in nature caused by a deadly weapon like M.O.1. In that view of the matter, this Court is of the considered opinion that the courts below erred in convicting the petitioner for the offence punishable under Section 307 IPC and the petitioner had committed the offence punishable under Section 324 IPC. Accordingly, the sentence of five years simple imprisonment imposed by the trial court for the offence punishable under Section 307 IPC is hereby set aside. However, taking into consideration the fact that P.W.2 received simple injuries and they are simple in nature caused by a deadly weapon like M.O.1, the petitioner is convicted for the offence punishable under Section 324 IPC. The learned counsel for the petitioner-accused has submitted that the petitioner was in jail for a period of five months. From the judgment of the trial court, it appears that the petitioner was remanded to judicial custody on 26.03.1998 and he was released on bail on 13.07.1998. Further, when the appeal filed by the petitioner was dismissed by the lower appellate court on 24.11.2003, immediately he was taken into custody. Thereafter, the petitioner approached this court and filed the present revision, and this Court, by an order dated 29.12.2003, granted bail to the petitioner. From the above, the statement of the learned counsel for the petitioner that the petitioner was in jail for a period of five months appears to be correct. However, this Court is not inclined to reduce the period of sentence to that of the period already undergone by the petitioner for the reason that the weapon that has been used by the petitioner in committing the said offence is a big boulder. 7. In the result, the criminal revision case is allowed in part setting aside the sentence of five years simple imprisonment imposed by the trial court against the petitioner-accused for the offence punishable under Section 307 IPC and the petitioner-accused is convicted for the offence punishable under Section 324 IPC, and accordingly, he is sentenced to undergo rigorous imprisonment for a period of one year. In so far as the fine amount is concerned, the same is maintained. __________________________ GOPALA KRISHNA TAMADA, J 9th March, 2010 CBS HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL REVISION CASE No.1091 of 2002 (Partly allowed) 9th March, 2010 CBS