HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2223 of 2004 Date:11.02.2011 Between: Akki Sathyanarayana and 3 others. ….Appellants And: State, rep. by PP. .…. Respondent. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2223 of 2004 JUDGMENT: This appeal arises out of the conviction and sentence passed by the V Additional Sessions Judge (Fast Track Court), Ranga Reddy on 29.09.2004. The appellants herein are A.1 to A.4 in the above said case and they were prosecuted for the offence under Section 302 read with 34 IPC and Section 323 IPC. The brief facts of the case are that the Taddy Taper’s Cooperative Society in Errakunta village under the limits of Pahadishareef Police Station under the Presidentship of one A. Pentalau with the deceased A. Subrahmanyam one of its Directors managing the affairs of the said society. The Toddy compound auctioned as it has been every year and entrusted to the highest bidder, who has to pay Rs.15,000/- as license fee every month apart from Rs.2,80,000/- to the society as per the agreement for the current year, which would be shared among 66 members of the society. A. Ramu Goud P.W.1 and A. Anjaiah P.W.5 also took part in the management along with the deceased. The deceased and accused belong to same community and they are all interested in the same toddy business. The accused suspected that the deceased Subramaniyam was not paying the full amounts of share to them and showing more expenditure, but the business was flourishing because of the increase of the customers. Since the accounting year was coming to end by the 1st April, A.1 came to toddy compound on 28.3.2003 to negotiate with the deceased, where altercation took place between them, in which deceased took objection for A.1 not giving respect to him as an elderly person. A.1 slapped the deceased and he was sent out by the persons of the deceased at about 6.15 p.m. After few minutes A.1 brought A.2 to A.5 to the toddy compound and all of them beat the deceased with hands indiscriminately and also stamped him with feet, due to which he collapsed on the spot. Later A. Anesh P.W.12 was also beaten up by the accused and fled away from the scene and that the deceased was shifted to Owaisi Hospital by P.W.10 A. Raghunath and Anil Kumar P.W.11 and there he was declared to be dead. Then A. Ramu Goud P.W.1 came to Pahadishareef Police station and lodged a complaint under Ex.P.1. The Sub Inspector of Police P.W.15 registered a case in Crime No.56 of 2003 under Section 302 IPC and the case was investigated by the Inspect of Police P.W.14 and after completion of the investigation a charge sheet was filed against the accused for the offence under Sections 302 and 323 read with 34 IPC. The learned Sessions Judge has framed a charges under Section 323 read with 34 IPC and under Section 302 read with 34 IPC and all the accused pleaded not guilty. The prosecution in order to establish the charge, examined P.Ws.1 to P.16 and got marked Exs.P.1 to 8 and M.Os.1 to 4. On behalf of the accused Exs.D.1 and D.2 were marked during the course of cross-examination of P.W.3. The learned Sessions Judge after taking into consideration of both oral and documentary evidence found A-1 to A-5 not guilty for the offence under Section 302 read with 34 IPC and A.5 is also not found guilty for the offence punishable under Section 323 read with 34 IPC and A.1 is found guilty for the offence punishable under Section 323 IPC and A.2 to A.4 are held guilty of the offence punishable under Section 323 read with 34 IPC. A.1 to A.4 are convicted of the same under Section 235(2) Cr.P.C and sentenced to undergo simple imprisonment for a period of one year each and to pay fine of Rs.500/- each in default to undergo simple imprisonment for two months. Aggrieved by the said conviction and sentence, the present appeal is filed. Now the point that arises for consideration is whether the prosecution could able to establish the offence under Section 323 IPC against A.1 and offence under Section 323 read with 34 IPC against A.2 to A.4? The main contention of the learned counsel for the appellant is that because of previous disputes between the accused and the deceased, a false case was foisted against A.1 to A.4 and the overt acts of the A.1 could not be established and the prosecution could not able to establish that the A.2 to A.4 have common intention in attacking the deceased along with A.1 as they came to the spot after the incident without meeting to A.1 and as such they cannot be punished for offence under Section 323 read with 34 IPC. The learned Public Prosecutor, on the other hand, has pleaded that specific overt acts are attributed against A.1 to A.4 and P.Ws.1 to 5 and 8 have specifically spoken about the version of the prosecution and they supported the version of each other and A.2 to A.4 came after 15 minutes to the incident and by the time A.1 was sent out of the toddy compound and as such there is a common intention between all the accused in committing the offence. The case of the prosecution is that on 28.3.2003 at about 6.15 p.m A.1 came to the toddy compound and was sitting in a chair and at that time, the deceased came there and asked the accused to get up from the chair and scolded for not giving respect to the elders and asked him to leave the place. Thereupon, the accused slapped the deceased and then P.W.2 and others taken him out of the toddy shop and sent him away. Thereafter, A.1 to A.4 came to the shop and attacked on the deceased. P.W.1 who is the complainant has stated that on 28.3.2002 at about 5.45 p.m he came to the toddy shop and saw A1 and Venkatesh sitting in the chairs near the counter. He also stood there and was talking with them. By 6.00 or 6.15 p.m the deceased Subramanyam came there. Venkatesh has stood up from the chair whereas A.1 did not stand up but continued sitting in the chair. Then the deceased chastised A.1 for not getting up from the chair saying that he should give respect to elders. Then A.1 stated that there is another chair in which deceased Subramanyam could sit and continued sitting in the chair. Then Subramnyam caught hold of hand of A.1 and tried to pull him up from the chair. Then A.1 slapped deceased on the cheek. Then Subramanyam slapped A.1. Then he and Venkatesh have taken A.1 out from there. When they came out just outside the compound, they saw A.2 sitting in kirana shop near the compound wall. Therefore, the said version of the P.W.1 was supported by the evidence of P.W.2. A.2 was present at the time of incident. According to him, when A.1 slapped the deceased Subramnyam himself and P.W.1 has taken him outside the compound and A.1 has brought in A.2 to A.5 into toddy compound and all of them assaulted the deceased with hands and legs. P.W.3 said to be the eye witness to the incident has also supported the version of the P.Ws.1 and 2 and he has also stated that the deceased chastised A.1 saying that he had no courtesy to stand when elders come. Then A.1 stood up and slapped the deceased. Then he has taken the deceased aside. P.Ws.1 and 2 took out A.1 outside the toddy compound. Then A.2 to A.5 came inside the toddy compound and assaulted the deceased and started kicking with legs and beat with hands due to which Subramanyam collapsed on the ground. P.W.8 is another eye witness who supported the version of the P.W.5 with regard to the accused coming to the toddy compound after A.1 was taken out of the toddy compound by P.Ws. 1 and 2. Therefore, the version of P.Ws.1 to 5 and 8 are consistent with each other with regard to A.1 slapping the deceased P.Ws.1 and 2 taking him outside the compound and he again coming to the toddy compound along with A.2 to A.5 and attacking on the deceased and beating him with hands and legs. Even though the accused was prosecuted for offence under Section 302 IPC as the deceased died due to attack caused by the accused, the lower court has found that the deceased was having a heart ailment and not aware either by the P.Ws.1 to 5 or the accused and as such found not guilty for offence under Section 302 IPC. With regard to the injuries sustained by P.W.1, Doctor P.W.11 who conducted post-mortem over the dead body of the deceased has found the following ante-mortem injuries: 1. A contused abrasion of 3 cm x 1 cm., horizontally placed over the left back of the abdomen upper half. Bluish red in colour. 2. Abrasion of 2 cm x 1 cm over the top of the right shoulder red in colour. 3. Abrasion of 1 cm x 1 cm in front of mid chest over the sternum, red in colour. Therefore, the prosecution could able to establish the said injuries were caused due to the attack of A.1 to A.4 on the deceased. Thus, the learned Sessions Judge has rightly come to the conclusion that the prosecution could able to establish the offence under Section 323 IPC against A.1 and Section 323 read with 34 IPC against A.2 to A.4 and hence the finding of the lower court does not warrant any interference by this Court. With regard to quantum of sentence, the lower court sentenced them to under go simple imprisonment for a period of one year and to pay fine of Rs.500/- each. In view of the nature of offence committed by the accused, I hold that the said sentence is little bit harsh and hence the sentence of one year is reduced to simple imprisonment for six months and confirmed the fine of Rs.500/- each. Accordingly the appeal is partly allowed with the above said modification. In the result, the appeal is partly allowed and the conviction and sentence against A.1 for the offence under Section 323 IPC and conviction and sentence against A.2 to A.4 under Section 323 read with 34 IPC is confirmed and the sentence is modified from simple imprisonment of one year to simple imprisonment of six months and confirmed fine of Rs.500/- each. _____________________ P.DURGA PRASADJ. Date:11.02.2011 Gk. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2223 of 2004 Date:11.02.2011 Gk.