THE HON'BLE SRI JUSTICE D.S.R.VARMA AND THE HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO Criminal Appeal No.543 of 2009 Date: 18-01-2010 Between Thorati Surya Rao and 2 others … Appellants/Accused 1 to 3 and State of A.P., Rep. by Public Prosecutor, High Court, Madina, Hyderabad … Respondent THE HON'BLE SRI JUSTICE D.S.R.VARMA AND THE HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO Criminal Appeal No.543 of 2009 Oral Judgment: (per D.S.R.Varma, J.) Heard Sri T.Bali Reddy, learned Senior Counsel, representing Sri K.Suresh Reddy, learned Counsel appearing for the appellants- accused 1 to 3 and the learned Public Prosecutor appearing for the respondent-State. 2. Challenging the order of conviction and sentences passed by the I Additional Sessions Judge, Rajahmundry, East Godavari district in Sessions Case No.203 of 2006, dated 31-12-2008, the present appeal is filed. 3. The case of prosecution, in brief, is that – (a) P.W.1 is elder brother of accused No.1; that accused 2 and 3 are the sons of accused No.1; that they are living together; that the house of accused 1 to 3 and the house of P.W.1 are side by side and there are vacant sites on the rear side of the respective houses; that these accused constructed kitchen to some level adjacent to the wall bifurcating the properties of accused No.1 and P.W.1 within their vacant site and left out some gaps in the kitchen walls for installation of two windows, opening towards the house of P.W.1; that for such opening of windows by the accused, was objected by P.W.1 and his sons; that this incident was occurred about four days prior to this case incident; that on that date of such objection P.W.1 proposed to the accused to place the matter before the elders, and accordingly, the matter was placed before the elders, but the accused failed to heed the advise of the said elders. (b) That on 07-6-2005 at about 8 a.m., the accused started their work of installation of windows in the gaps left out in their kitchen room wall opening towards the house of P.W.1; that then P.W.1 and his sons i.e., P.W.2 and one Thorati Satyanarayana @ Sathibabu (hereinafter referred to as ‘the deceased’) objected; that on that, accused 1 to 3 entered the rear side vacant site of the house of P.W.1 and picked up a quarrel; that during that course of quarrel, accused 1 to 3 went into their house and accused No.1 brought a stick (M.O.1), accused No.2 brought a crowbar (M.O.2) and accused No.3 brought a knife (M.O.3) and attacked P.W.1 and his sons P.W.2 and the deceased; that during that course of attack, accused No.1 beat P.W.1 with a stick on his head, resulting bleeding injury; that accused No.1 also beat P.W.1 with the same stick on the right fore leg of P.W.1, resulting a contusion; that accused No.2 with a sharp end of the crowbar stabbed the deceased on his stomach, resulting a bleeding injury; that accused No.3 hacked the deceased with the knife on his left forehand and caused bleeding injury; that accused No.1 beat the deceased with a stick on his head; that accused No.2 picked up a brick bat available there and hurried on P.W.2, which caused bleeding injury to P.W.2 on his head; that accused No.3 stabbed P.W.2 with the knife on the shoulder, resulting a bleeding injury; that when P.W.3, who is the wife of P.W.1 and the mother of P.W.2 and the deceased, interfered to rescue them, then accused No.3 stabbed P.W.3 with the knife on her left forehand, resulting a bleeding injury. (c) That on arrival of the other family members of P.W.1 and the residents nearby, accused 1 to 3 escaped from the scene of offence; that the injured P.Ws.1 to 3 and the deceased admitted themselves in Government Hospital, Rajahmundry on 07-6-2005. (d) That on receipt of the hospital intimation Ex.P-10 and the statement of P.W.1 recorded by the OP Head Constable P.W.9 as in Ex.P-1, the Sub Inspector of Police P.W.11 registered the same as a case in Crime No.107 of 2005 under Section 324 read with Section 34 of IPC and issued F.I.R., Ex.P-14. (e) That on 07-6-2005 at about 11.30 a.m., the deceased was got discharged from the District Hospital, Rajahmundry, by his relatives against the medical advise and was got admitted in the hospital of Dr. R.S.Chalam P.W.8 for better treatment; that P.W.10 examined the injured P.Ws.1 to 3 and issued wound certificates as in Exs.P-11 to P-13; that the deceased while undergoing treatment in the hospital of P.W.8 succumbed to the injuries on the intervening night of 09/10-6-2005 at about 12.30 a.m.; that the Sub Inspector of Police, Kadiam Police Station P.W.11 altered Section of Law from Section 324 read with Section 34 of IPC to Sections 302, 324 read with Section 34 of IPC and issued altered FIR as in Ex.P-19 and that after completion of all the formalities, the Inspector of Police, Rajahmundry Rural Circle P.W.12 laid a charge-sheet against the accused. 4. Charges under Sections – 324 of IPC against accused No.1; 324 read with Section 34 of IPC against accused 2 and 3; 302 of IPC against accused No.2; 302 of IPC against accused No.1; 302 read with Section 34 of IPC against accusedNo.3; 324 of IPC against accused No.2; 324 read with Section 34 of IPC against accused 1 and 3; 326 of IPC against accused No.3; and 326 read with Section 34 of IPC against accused 1 and 2, were framed, read over and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried. 5. In support of its case, the prosecution has examined P.Ws.1 to 12 and marked Exs.P-1 to P-26 and M.Os.1 to 9. No oral evidence was adduced on behalf of the accused, but the portions marked in Section 161 Cr.P.C., statements of P.Ws.1 and 3 to 5 and the portion marked in Ex.P-1 report given by P.W.1 were marked as Exs.D-1 to D-8. 6. At the outset, we put on record that the learned Senior Counsel had fairly contended that as per the evidence available on record, the prosecution had established the offences with which the appellants were charged with successfully, but the trial Court was in error in convicting all the appellants under different provisions. 7. For ready reference, it is to be seen that – (a) accused 1 and 3 have been convicted under Section 302 read with Section 34 of IPC and were sentenced to undergo imprisonment for life coupled with fine of Rs.1,000/- and in default, to suffer simple imprisonment for one year; (b) Accused No.2 was convicted for the offence under Section 302 of IPC and was sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/- and in default, to suffer simple imprisonment for one year; (c) All the appellants have been further convicted under Section 324 and Section 324 read with Section 34 of IPC for causing injuries to P.Ws.1 to 3 and were sentenced to suffer simple imprisonment for one year along with fine of Rs.500/- each, in default to suffer simple imprisonment for 6 months on each count; 8. Therefore, it is necessary to examine as to whether the trial Court was right in appreciating the evidence on record in order to arrive at the conclusion that all the accused were responsible for the offences under various provisions, particularly for the offence under Section 302 read with Section 34 of IPC. In this context, the relevant evidence that is available on record is that of P.Ws.1 to 3, and the relevant documents Exs.P-11 to P-13, which are wound certificates issued by the doctor P.W.10 for the injuries caused against P.Ws.1 to 3. 9. Obviously, P.Ws.1 to 3 are the eyewitnesses. It could be seen from the record that P.W.1 stated that the deceased was his eldest son and P.Ws.2 and 3 are his son and wife and further that himself and accused No.1 are brothers. Both of them thought of owning their individual houses and started construction individually and of course, partially collectively engaging the same workers etc. The construction work of both the houses was being made simultaneously. During the progress of the work and when actually windows were to be fixed to the kitchens, there was a dispute between accused No.1 and P.W.1, for the simple reason that both of them were contemplating to have the kitchens opposite to each other. There was some dispute in that regard. One party resisted window to be fixed to the kitchen quite opposite to the other. The dispute went to the elders and had got subsided. 10. Again, after a few days, when the accused started installing the window to his kitchen, the same was opposed and resisted by the family members of the deceased, particularly P.W.1. Owing to the said stiff resistance, accused No.2 got enraged and immediately picked up a readily available crowbar and threw it at the abdomen of the deceased, resulting in a grievous injury. Simultaneously, accused 1 and 3 also inflicted injuries with a knife and a stick on the deceased. With the intervention of P.Ws.1 and 3, they also were injured at the hands of all the three accused. 11. The deceased was shifted to the District Headquarters Hospital at Rajahmundry. Along with the deceased P.Ws.1 to 3 also were moved to the hospital where all the four were examined and the wound certificates in Exs.P-11 to P-13 were issued in respect of the injuries on P.Ws.1 to 3. In view of the serious injury on the deceased, he was immediately shifted to a private nursing home belonging to P.W.8, where he was treated by conducting a surgical operation and the deceased was alive for two days and on the third day he died. Consequently, the Section of law was altered to 302 of IPC. 12. The trial Court having gone into the evidence on record had recorded a finding that it is accused No.2, who actually caused the serious injury on the abdomen of the deceased with a crowbar, followed by the other injuries caused by accused 1 and 3 on the hand with a knife and on the head with a stick. 13. We need not discuss elaborately about the evidence on record and the veracity or otherwise of it, inasmuch as the learned Senior Counsel had submitted at the outset that the prosecution had successfully proved the injuries caused on the deceased as well as P.Ws.1 to 3 at the hands of the accused. 14. Therefore, as already pointed out, the only question that remains to be addressed is as to whether all the three accused are liable to be convicted under different provisions, particularly accused 1 and 3 for the offence under Section 302 read with Section 34 of IPC. 15. In this limited area of discussion, we have to necessarily delve into the various circumstances, in which the offence was committed by the accused, particularly as to whether there are any mitigating circumstances, as contended by the learned Senior Counsel. 16. The case of prosecution, particularly in the light of the evidence of P.W.1 is that there were no disputes between the families of the accused and the deceased and the injured witnesses P.Ws.1 to 3. Both parties are closely related, in fact accused No.1 and P.W.1 are own brothers and the others are family members of either side. 17. Therefore, it is the case of prosecution that there were no disputes whatsoever any time before between these two parties and the controversy had arisen only when both sides started constructing their respective houses planning both the kitchens on the same side. 18. In other words, the windows of both the kitchens would be looking at each other, which was objected to by one party. The disputes have been subsided with the intervention of elders, however, when the work of installing the window to the kitchen by accused No.1 was going on, the same was seriously opposed by the deceased party, and accused No.2, who is no other than the son of accused No.1, became wildly aggressive and picked up a crowbar and threw it at the abdomen of the deceased causing a grievous injury. Accused 1 and 3 who were also present at the time of offence simultaneously attacked the deceased by causing an injury on the hand of the deceased with a knife and giving a blow on the head of the deceased. 19. What is to be remembered is that all the three injuries were inflicted on the deceased almost simultaneously, though accused No.2 took the initiative. 20. It was pointed out by the trial Court that since accused 1 and 3 also caused injuries to the deceased they were also roped into the ambit of Section 34 of IPC. 21. In fact, the overt acts of accused 1 and 3 as attributed by the prosecution and the witnesses as well are -- inflicting a lacerated injury on the hand with a knife and giving a blow with a stick on the head of the deceased. Therefore, it was pointed out by the trial Court that they were also equally responsible for the death of the deceased and are liable to be punished invoking Section 34 of IPC. In other words, it was the view of the trial Court that accused 1 and 3 also shared the common intention. 22. In this connection, it is to be seen that and as already pointed out by us, it was accused No.2, who initiated the assault by throwing a crowbar at the abdomen of the deceased followed by the attack by accused 1 and 3. From the very fact that because of the sudden, unexpected and disproportionate resistance by the deceased group, the attack on the deceased was resorted to and it was not the case of prosecution that there were any prior disputes between them. There was absolute cordiality between these two families. In a way, both the parties have stuck themselves to have their kitchens quite opposite to each other and one party intended to install the window facing at the kitchen of the other party. Some times, this type of actions would cause a kind of grievance, which may result in provocation and such provocation some times may go beyond proportion and that is precisely what had happened in the present case. 23. Hardly we could find any time for all the three accused to develop a common intention to annihilate the deceased. It is only accused No.2, who initiated the attack and again hardly there was any attempt for the other two accused i.e., accused 1 and 3 to share the intention of accused No.2. In other words, there was no time for accused 1 and 3 to sense what was the intention of accused No.2 in throwing a crowbar, which was readily available, at the deceased. 24. Therefore, in such circumstances, particularly when there was no premeditation nor there was any attempt to have a designed plan or when there was no time for the other accused to know the exact intention of accused No.2 who caused the grievous injury, it is difficult for us to arrive at the conclusion that accused 1 and 3 are also to be held responsible for the offence under Section 34 of IPC as having shared the common intention to eliminate the deceased. 25. The very facts on record speak for themselves and it is absolutely indiscernible as to how there could be any premeditation or sharing of common intention of attracting Section 34 of IPC in order to record a finding that other two accused also were responsible for the offence under Section 302 read with Section 34 of IPC. 26. No doubt, Section 34 of IPC can be invoked by the court depending upon the facts and circumstances of each case. The settled law is that ‘common intention’ can arise spontaneously and there need not be any premeditation insofar as the common intention is concerned. But it is for the court to infer whether there was any such scope for other people to share the common intention or not. Mere presence or for that matter, causing some injuries need not necessarily amount to sharing the common intention. 27. As we have already pointed out, there was hardly any time for the other two accused to know the mind of the prime accused i.e., accused No.2 in order share his intention and when there is no such scope to know his intention, it is difficult for us to accept with the finding of the trial Court that accused 1 and 3 are responsible for the offence under Section 34 of IPC and consequently liable for the offence committed by accused No.2. Accordingly, accused 1 and 3 are to be acquitted for the offence under Section 302 read with Section 34 of IPC. 28. The consequential question that falls for consideration is -- for what offences accused 1 and 3 can be convicted ? 29. From the above discussion, the overt acts that were specifically attributed against accused 1 and 3 are -- hitting with a stick on the head and causing a lacerated injury with a knife on the hand of the deceased. The doctor P.W.7, who conducted post- mortem examination over the body of deceased, opined that the injuries caused by accused 1 and 3 are simple in nature. 30. Therefore, when there was no common intention between accused No.2 on one side and accused 1 and 3 on the other, in our considered view, accused 1 and 3 are liable to be held responsible for their individual acts and those individual acts are nothing but causing simple injuries and the same are attracted by Section 324 of IPC, as was rightly held by the trial Court. 31. Accordingly, we agree with the finding recorded by the trial Court insofar as accused 1 and 3 are concerned that they have to be convicted independently for the offence under Section 324 of IPC only and consequently, they are to be acquitted for the offence under Section 302 read with Section 34 of IPC and the consequential sentence imposed by the trial Court is also liable to be set aside and accordingly set aside. 32. Now, we have to discuss about the role of accused No.2. Obviously, he had inflicted an injury against the deceased by throwing a crowbar into his abdomen. The said injury was also opined to be fatal and the death of deceased was due to septicaemia and shock. Further, obviously the said injury caused by the crowbar, which was more than 5 inches deep into the abdomen, is sufficient to cause death. There is no need to have any further discussion in this regard. 33. The only question is as to whether accused No.2 is to be convicted for the offence under Section 302 of IPC ? 34. From the facts put forth by the prosecution and as spoken to by the witnesses, it could be seen that there were no disputes at all between the two parties, both were closely related and members of almost the same family. The dispute had arisen only with regard to installation of windows to the kitchens and the resistance by one party provoke the other party to become aggressive. 35. We have already discussed in the earlier paragraphs that there was hardly any time for the aggressor party to have a deliberate intention and premeditation to commit the offence under Section 302 of IPC. Obviously, it is only sudden provocation of the resistance offered by P.W.1 and his family members. There was absolutely no other reason, as could be seen from the record or from the evidence of the prosecution witnesses. Accused No.2 was the initial aggressor, who caused only one blow. Of course, giving a solitary blow may not necessarily always be a ground or the same can be treated as a mitigating circumstance to move out somebody from the offence under Section 302 of IPC. 36. The courts have to necessarily look into the over all circumstances of the case. If the other circumstances are looked at, we are of the considered view that there is absolutely no possibility for accused No.2 to develop animosity, particularly against the deceased and from the evidence, it is absolutely clear that it is only on that particular day and at the particular time when the installation of the window to the kitchen was attempted to. Undoubtedly, this is the only source for accused No.2 who is the prime aggressor to attack the deceased and causing a fatal injury. 37. In such circumstances, we are of the view that the act of throwing the crowbar into the abdomen of the deceased by accused No.2 causing a grievous injury cannot be treated as culpable homicide, which amounts to murder and we are of the further view that the same would fall under Section 304 Part II of IPC. In such circumstances, we feel it appropriate to impose punishment of rigorous imprisonment for 5 years and fine of Rs.1,000/-, in default to suffer simple imprisonment for 6 months, after giving set off of the period already undergone by accused No.2. 38. Further, in view of the evidence on record, we have no reason to deviate from the view taken by the trial Court to the effect that accused No.2 is guilty for the offence under Section 324 of IPC for causing injuries to P.Ws.1 to 3 and consequently, the conviction and sentences imposed by the trial Court against accused No.2 on other counts for the offence committed under Section 324 of IPC are to be confirmed and the sentences imposed for the said offences are also confirmed and they shall run concurrently. 39. In the result, (i) The conviction and sentence imposed by the trial Court against appellant No.2-accused No.2 for the offence under Section 302 of IPC are set aside and instead, he is convicted for the offence punishable under Section 304 Part II of IPC and sentenced to undergo rigorous imprisonment for 5 (five) years and to pay a fine of Rs.1,000/- (Rupees one thousand only), in default to undergo simple imprisonment for six months, after giving set off of the remand period already undergone by him. (ii) The conviction and sentences imposed by the trial Court against appellants 1 and 3-accused 1 and 3 for the offence under Section 302 read with Section 34 of IPC are set aside. (iii) The conviction and sentences imposed by the trial Court against accused No.2 on other counts for the offence committed under Section 324 of IPC are to be confirmed and the sentences imposed for the said offences are also confirmed and they shall run concurrently. (iv) The conviction and sentences imposed by the trial Court against accused 1 and 3 on other counts for the offences committed under Section 324 of IPC are confirmed and the sentences imposed for the said offences are also confirmed and they shall run concurrently. (v) At this stage, the learned Senior Counsel has brought to our notice that accused 1 and 3 had already undergone punishment of rigorous imprisonment for one year and 18 days, which exceeds the punishment imposed by the trial Court and as confirmed by us for the offence under Section 324 of IPC. In view of the said fact, they are to be set at liberty forthwith, however, subject to the payment of fine amounts, if not required in any other case. (vi) The appeal is allowed to the extent indicated above. ______________________________ JUSTICE D.S.R.VARMA ______________________________ JUSTICE NOOTY RAMAMOHANA RAO 18th January, 2010. Ak