THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.967 OF 2004 DATED 7th DECEMBER, 2010. BETWEEN : Mohd. Eliyas .. Appellant and The State of A.P. ..Respondent THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.967 OF 2004 JUDGMENT: This is an appeal arising out of conviction and sentence passed in Sessions Case No.228 of 2003 by the V Additional Sessions Judge, Nizamabad (Fast Track Court) wherein the learned Sessions Judge convicted the accused under Section 235 (2) of the Code of Criminal Procedure (for short ‘Cr.P.C.’) and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs.1000/-, in default to suffer simple imprisonment for six months, for the offence punishable under Section 304 Part II of Indian Penal Code (for short ‘IPC’). Prosecution case, in brief, is that on 28.02.2003 a quarrel took place between the deceased Hamed Ali and accused at a toddy shop at Nehrunagar village. In that connection, on the same day at about 9- 30 p.m. accused waylaid the deceased at Nehrunagar Masjid, abused him in filthy language, kicked him on his testicles by caught holding his hair. In the mean time nearby persons intervened and separated them by which time the deceased fell unconscious. Immediately, he was shifted to Pragathi Nursing Home and from there to Government Hospital where doctor declared him dead. Hence, the case. Basing on the complaint of the brother of the deceased, Police registered a case in crime No.49 of 2003 and after completion of entire investigation, they filed charge sheet for the offence under Section 302 IPC against the accused. In order to prove its case, Prosecution got examined PWs 1 to 9 and marked Exs.P.1 to P.6. When examined under Section 313 (b) Cr.P.C. accused denied the incriminating circumstances read over to him, which is available in the evidence of prosecution witnesses. He did not choose to adduce any oral or documentary evidence on his behalf. After taking into consideration all the evidence adduced by the prosecution, the learned Sessions Judge convicted the accused as stated above. Heard. There is no dispute regarding the evidence adduced by the witnesses and they cogently deposed regarding the manner in which they separated the deceased and the accused. Section 304 runs as follows: 304. Punishment for culpable homicide not amounting to murder- Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. It is not the case of the prosecution that the petitioner intended to cause the death of the deceased. There was no such grave motive to cause the death of the deceased and the appellant has not used any weapon intending to cause death of the deceased. The learned Sessions Judge relied on the second limb of Section 304 IPC, which speaks about the knowledge that the injury will cause death to a person. Here, it is seen from the records and the evidence adduced by the eyewitnesses that the clash between the deceased and accused was in a spur of moment and the accused also used his legs and kicked the deceased in his testicles. Such act of the accused cannot be attributed to be with any knowledge that said act will cause death of the person. In the absence of intention or knowledge to commit a crime of murder, there is no application of section 304 Part II IPC. The said act of the accused will come under the purview of section 323 IPC. Hence, the conviction and sentence imposed on the petitioner by the learned Sessions Judge for the offence punishable under Section 304 part II IPC is modified to one under Section 323 IPC. The sentence of imprisonment is reduced to that of the period already undergone by the petitioner in prison. Fine amount imposed by the trial Court has to be treated as fine imposed for the offence under Section 323 IPC. With above modification, the Criminal Appeal is disposed of. ________________________ JUSTICE RAJA ELANGO Dated : 07.12.2010 sur