Telangana High Court
Jinugu Pakkira A1, Koilimingundla Vm ... vs State Of A.P., Rep. By Pp., High Court, ... on 30 July, 2018
The Hon'ble Sri Justice C.V.Nagarjuna Reddy
and
The Hon'ble Sri Justice Gudiseva Shyam Prasad
Criminal Appeal No.1328 of 2011
Date: 30.07.2018
Between:
Jinugu Pakkira and 2 others
... Appellants/accused Nos.1 to 3
and
The State of A.P.,
Rep. by its Public Prosecutor
High Court, Hyderabad
...Respondent
Counsel for the appellants: Smt.C.Vasundhara Reddy Counsel for the respondent: Public Prosecutor (AP) The Court made the following:
CVNR, J & GSP, J Crl.A.No.1328 of 2011
2 Dt: 30.07.2018 Judgment: (Per the Hon'ble Sri Justice C.V.Nagarjuna Reddy) This Criminal Appeal is instituted against Judgment, dated 28-10-2011, in Sessions Case No.327 of 2010 on the file of the V Additional District and Sessions Judge (FTC), Kurnool, Nandyal, whereby appellant No.1/accused No.1 was convicted (i) for the offence punishable under Section 302 IPC and sentenced to undergo Life Imprisonment and also to pay a fine of Rs.5,000/-, and in default of payment of fine, to suffer Simple Imprisonment for a period of six months; (ii) for the offence punishable under Section 307 IPC and sentenced to undergo Imprisonment for a period of ten years and also to pay a fine of Rs.3,000/-, and in default of payment of fine, to suffer Simple Imprisonment for a period of four months; (iii) for the offence punishable under Section 324 IPC and sentenced to undergo Imprisonment for a period of three years and also to pay a fine of Rs.1,000/-, and in default of payment of fine, to suffer Simple Imprisonment for a period of two months; and (iv) for the offence punishable under Section 148 IPC and sentenced to undergo Imprisonment for a period of three years and also to pay a fine of Rs.1,000/-, and in default of CVNR, J & GSP, J Crl.A.No.1328 of 2011 3 Dt: 30.07.2018 payment of fine, to suffer Simple Imprisonment for a period of two months. Appellant Nos.2 and 3/accused Nos.2 and 3 were convicted (i) for the offence punishable under Section 302 r/w 149 IPC and sentenced to undergo Life Imprisonment and also to pay a fine of Rs.5,000/- each, and in default of payment of fine, to suffer Simple Imprisonment for a period of six months; and (ii) for the offence punishable under Section 147 IPC and sentenced to undergo Imprisonment for a period of two years and also to pay a fine of Rs.1,000/- each, and in default of payment of fine, to suffer Simple Imprisonment for a period of two months. All these sentences were directed to run concurrently.
For convenience, the appellants shall be referred to as they are arrayed in the Sessions Case.
The case of the Prosecution, in brief, is stated hereunder:
On 24-01-2010, PW.8- Sarpanch of Kolimigundla Village, was providing water tap connections to the residents of SC Colony in Kalimigundla Village; that his brother-
Sundara Raju (hereinafter referred as 'the deceased') was assisting him; that PWs.1 to 3, LW.7- Belum Raju and PW.4 CVNR, J & GSP, J Crl.A.No.1328 of 2011 4 Dt: 30.07.2018 were attending the coolie work in connection with the said work; that at about 19.30 hours, when the work was going on near the houses of accused Nos.1 to 3, they along with accused Nos.4 and 5 came there; that they demanded to provide water tap connections to them; that PW.8 replied that on the next day, they will provide the same after consulting the Engineer of the Gram Panchayat; that accused Nos.1, 3 and 5 raised an objection; that they commented over their previous dispute regarding a house site with the deceased and picked up a quarrel with PW.8;
that when the deceased intervened, accused Nos.2 and 3 caught hold of him; and that accused No.1 went into his house, brought a knife and hacked the deceased indiscriminately and caused bleeding injuries to him. That meanwhile, PW.8 intervened; that accused No.1 hacked him also on his head & hands and caused bleeding injuries; that PW.5, PW.6 and some others intervened and rescued the deceased and PW.8; that accused Nos.1 to 5 absconded from that place; and that PWs.3 to 6 and LW.7- Belum Raju witnessed the same. That PWs.1 and 7 shifted the deceased and PW.8 to the Government Hospital, Banaganapalli, in 108 ambulance, for treatment; that the Medical Officer of CVNR, J & GSP, J Crl.A.No.1328 of 2011 5 Dt: 30.07.2018 the Government Hospital, Banaganapalli, declared the deceased as dead; and that he got PW.8 admitted in the Hospital for treatment. On the complaint (Ex.P.1) given by PW.1 on 25-01-2010 at 00.30 hours, PW.13- Assistant Sub- Inspector of Police, Kolimigundla Police Station registered a case in Crime No.10 of 2010 for the offences punishable under Sections 307 & 302 r/w 34 IPC and issued express FIRs to all the concerned Officers.
PW.14- Inspector of Police, Koilakuntla Circle, took up the investigation, proceeded to the house of PW.1 along with his staff, secured the presence of PWs.1 to 4, 9 & 10 and LW.12- Seelam Mallaiah, conducted inquest over the dead body of the deceased in their presence and seized the blood stained clothes of the deceased under the cover of Ex.P.2- Inquest report. That thereafter, PW.14 recorded the statements of LWs.1 to 4 under Section 161 (3) Cr.P.C., and sent the dead body of the deceased to the Medical Officer, Government Hospital, Banaganapalli, for Post Mortem Examination.
PW.14 examined the scene of offence at 11.15 a.m., collected the blood stained napa slabs, control napa slabs, CVNR, J & GSP, J Crl.A.No.1328 of 2011 6 Dt: 30.07.2018 blood stained tar road pieces, control road pieces and seized the blood stained knife, in the presence of PW.9 and LW.12- Seelam Mallaiah, under the cover of Ex.P.3- Scene Observation Panchanama. That thereafter, PW.14 recorded the statements of PW.5, PW.6 and LW.7- Belum Raju under Section 161 (3 ) Cr.P.C., went to the Government General Hospital, Kurnool, at 4.15 hours, seized the blood stained shirt of PW.8 in the presence of PW.9 and LW.12- Seelam Mallaiah under the cover of Ex.P.4- Seizure Panchanama, sent the seized articles to the Forensic Science Laboratory, Kurnool, for expert opinion and recorded the statements of PWs.7 and 8.
PW.11- Civil Assistant Surgeon, Community Health Center, Banaganapalli, who treated PW.8, issued Ex.P.5- Wound Certificate opining that the injuries caused to the latter are simple in nature.
PW.12- Civil Assistant Surgeon, who conducted autopsy over the dead body of the deceased, issued Ex.P.6- Post Mortem Certificate opining that the cause of death of the deceased was injury to left lung followed by cardio CVNR, J & GSP, J Crl.A.No.1328 of 2011 7 Dt: 30.07.2018 respiratory failure at about 15 to 20 hours prior to the Post Mortem Examination.
On 20-04-2010, PW.14 received report from the Forensic Science Laboratory to the effect that human blood is detected on item Nos.1 to 6, 8 and 10; that blood stains on items Nos.1 to 4 are of 'A' group; and that blood is not determined on item Nos.7 and 9, which are received as controls for item Nos.6 and 8 respectively.
On 02-02-2010 at 19.15 hours, PW.14 arrested accused Nos.1, 3, 4 and 5 near Thimmanayunipeta Cross Road and sent them for remand. On 15-02-2010 at 09.00 hours, he arrested accused No.2 near Bandarlapalli check post and sent him for remand.
Based on the charge sheet and the material collected during the investigation, the Court below has framed the following charges:
Firstly:
That on 24-1-2010 at about 19.30 hours while the work was going on near the houses of you A1 to A3 in S.C Colony, you A1 to A5 came to that place and demanded for water tap connections and LW.9 Pratap replied to him that tomorrow they will provide the water CVNR, J & GSP, J Crl.A.No.1328 of 2011
8 Dt: 30.07.2018 tap connections with consultation of the engineer of Gram Panchayat, you A5 Gundanna @ Maddileti raised objection for reply of LW.9, Pratap and also commented over your previous dispute regarding the house site and picked up quarrel. At that time the deceased Pidathala Sundara Raju intervened to rescue Pratap and you A2 and A3 caught hold the said Pidathala Sundara Raju (deceased) and in the meantime you A1 went into your house and brought a knife and hacked the deceased Sundara Raju indiscriminately with an intention to kill him and caused bleeding injuries and caused the death of the deceased Pidathala Sundara Raju and thereby you A1 committed an offence punishable under Section 302 IPC and within my cognizance.
Secondly:
That on 24-1-2010 at about 19.30 hours while the work was going on near the houses of you A1 to A3 in S.C.Colony, you A1 to A5 came to that place and demanded for water tap connections and LW.9, Pratap replied to him that tomorrow they will provide the water tap connections with consultation of the engineer of Gram Panchayat. You A5 raised Gundanna @ Maddilety raised objection for reply of LW.9 Pratap and also commented over your previous dispute regarding the house site and picked up quarrel at that time the deceased Pidathala Sundara Raju intervened to rescue Pratap and you A2 and A3 caught hold the said Pidathala Sundara Raju (deceased) and in the meantime you A1 went into hour house and brought a knife and hacked the deceased Sundara Raju indiscriminately with an intention to kill him and caused bleeding injuries and when LW.9, Pratap intervened, you A.1, Pakkira hacked him with your knife with an intention to kill him and caused bleeding injuries CVNR, J & GSP, J Crl.A.No.1328 of 2011
9 Dt: 30.07.2018 on his head and hands and thereby you committed an offence punishable under section 307 IPC and within my cognizance.
Thirdly:
That on 24-1-2010 at about 19.30 hours while the work was going on near the house of you A1 to A3 in S.C.Colony, you A1 to A5 came to that place and demanded for water tap connections and LW.9, Pratap replied to him that tomorrow they will provide the water tap connections with consultation of the engineer of Gram Panchayat you A5 Gundanna @ Maddilety raised objection for reply of LW.9 Pratap and also commented over your previous dispute regarding the house site and picked up quarrel, at that time the deceased Pidathala Sundara Raju intervened to rescue Pratap and you A2 and A3 caught hold the said Pidathala Sundara Raju (deceased) and in the meantime you A1 went into your house and brought a knife and hacked the deceased Sundara Raju indiscriminately with an intention to kill him and caused bleeding injuries and when LW.9, Pratap intervened, you A1, Pakkira hacked him with your knife and caused bleeding injuries on his head and hands and thereby you committed an offence punishable under Section 324 IPC and within my cognizance.
Fourthly:
That on 24-1-2010 at about 19-30 hours while the work was going on near the houses of you A1 to A3 in S.C.Colony, you A1 to A5 came to that place and demanded for water tap connections and L.W.9, Pratap replied to him that tomorrow they will provide the water tap connections with consultation of the engineer of Gram Panchayat, you A5 raised Gundanna @ Maddilety raised objection for reply of LW.9, Pratap and also CVNR, J & GSP, J Crl.A.No.1328 of 2011
10 Dt: 30.07.2018 commented over your previous dispute regarding the house site and picked up quarrel at that time the deceased Pidathala Sundara Raju intervened to rescue Pratap and you A2 and A3 caught hold the said Pidathala Sundara Raju (deceased) and in the meantime you A1 went into your house and brought a knife and hacked the deceased Sundara Raju indiscriminately with an intention to kill him and caused bleeding injuries and caused his death and hereby you A2 and A3 committed an offence punishable under section 302 read with 149 IPC and within my cognizance.
Fifthly:
That on 24-1-2010 at about 19-30 hours while the work was going on near the houses of you A1 to A3 in S.C colony, you A1 to A5 came to that place and formed into an unlawful assembly with a common object to kill Pidathala Sudnara Raju and LW.9 Prathap and committed rioting and that you thereby committed an offence punishable under section 147 IPC and within my cognizance.
Sixthly:
That on 24-1-2010 at about 19-30 hours while the work was going on near the houses of you A1 to A3 in S.C Colony, you A1 to A5 came to that place and formed into an unlawful assembly armed with deadly weapons like knife with a common object to kill Pidathala Sundara Raju and LW.9 Prathap and committed rioting and that you thereby committed an offence punishable under section 148 IPC and within my cognizance."
As the plea of the accused was one of denial, they were subjected to trial during which the Prosecution examined CVNR, J & GSP, J Crl.A.No.1328 of 2011
11 Dt: 30.07.2018 PWs.1 to 15, got Exs.P.1 to P.14 marked and produced MOs.1 to 10. The Defence got marked Ex.D.1- relevant portion in Section 161 Cr.P.C. statement of PW.3.
On appreciation of the oral and documentary evidence, the Court below disposed of the case in the manner as noted above.
We would like to first consider the case against accused Nos.2 and 3. The accusation against these accused is included in Charge Nos.4 to 6. Under Charge No.4, they were charged for the offence punishable under Section 302 r/w Section 149 IPC. Under Charge Nos.5 and 6, they along with accused Nos.1, 4 and 5 were charged for the offences punishable under Sections 147 and 148 IPC respectively. The Court below has acquitted accused Nos.4 and 5 of both the charges. Indeed, they were not charged for the offence punishable under Section 302 r/w 149 IPC.
Smt.C.Vasundhara Reddy, learned Counsel for the appellants/accused Nos.1 to 3, submitted that to constitute an unlawful assembly there must be five or more persons with the common object of committing offence and that the CVNR, J & GSP, J Crl.A.No.1328 of 2011 12 Dt: 30.07.2018 provisions of Sections 147, 148 and 149 IPC get attracted only in case of existence of the proof of unlawful assembly. She further submitted that as accused Nos.4 and 5 were not charged for the offence punishable under Section 302 r/w Section 149 IPC, such a charge is wholly unsustainable as against accused Nos.2 and 3 and that unless five or more persons are attributed with the common object of committing a specific offence, such persons cannot be charged for any offence r/w Section 149 IPC.
The Court below, in our considered opinion, has committed a serious error in excluding accused Nos.4 and 5 from being charged for the offence punishable under Section 302 r/w Section 149 IPC. It has committed a further error in holding accused Nos.2 and 3 guilty of the charge under Section 302 r/w Section 149 IPC, having disbelieved the case of the Prosecution that accused Nos.4 and 5, with the common object, have committed the offence and acquitted them of the charges punishable under Sections 148 and 149 IPC.
The learned Public Prosecutor, while fairly conceding the position in law as discussed above, however, urged that CVNR, J & GSP, J Crl.A.No.1328 of 2011 13 Dt: 30.07.2018 the charge under Section 149 IPC may be converted into the one under Section 34 IPC. We are afraid we cannot accept this request at this stage because Section 34 IPC dealing with common intention is a more serious charge, which requires prior meeting of minds or preconcert, unlike Section 149 IPC relating to common object, which could be a result of an unlawful assembly formed then and there without premeditation. Even according to the case of the Prosecution and as held by the Court below, it is only accused No.1, who stabbed the deceased and caused his death. The overt act attributed to accused Nos.2 and 3 is that they caught hold of the deceased. The necessity of referring to the evidence and probing into the truth or otherwise of the charge framed against accused Nos.2 and 3 is obviated because they were not charged for the offence punishable under Section 302 IPC simplicitor for causing the death of the deceased. Therefore, even if the Prosecution was able to prove that accused Nos.2 and 3 have caught hold of the deceased, they cannot be convicted for the offence punishable for murder. When the charge itself is inherently defective, it is neither fair nor appropriate for the Court to convict the accused. In this view of the matter, we are of the CVNR, J & GSP, J Crl.A.No.1328 of 2011 14 Dt: 30.07.2018 opinion that the conviction of accused Nos.2 and 3 for the offence punishable under Section 302 r/w Section 149 IPC cannot be sustained and the same is liable to be set aside.
As regards accused No.1, there are as many as eight eye witnesses, out of whom PW.8 is an injured witness. All the witnesses consistently spoke about the role played by accused No.1. As per their evidence, on being caught by accused Nos.2 and 3, accused No.1 went inside his house brought MO.1- butcher's knife and stabbed the deceased below his left axilla and left parietal region. The overt acts attributed by the Prosecution through the eye witnesses is fully corroborated by Ex.P.6- Post Mortem Certificate as spoken to by PW.12- Civil Assistant Surgeon, who conducted autopsy over the dead body of the deceased.
The learned Counsel for accused Nos.1 to 3 has submitted that there is an unexplained delay in registration of the First Information Report (FIR) and that, while the accident has taken place at 7.30 p.m., on 24-01-2010, the FIR was registered at 12.30 a.m., on the intervening night of 24/25.01.2010.
CVNR, J & GSP, J Crl.A.No.1328 of 2011 15 Dt: 30.07.2018 No doubt, there was a time gap of about five hours in registration of the FIR. However, as all the witnesses consistently spoke about the involvement of accused No.1 and as the testimony of PW.8, who is an injured witness, enjoys highest credibility, as he would not have spared the real culprit and falsely implicated accused No.1, the delay in the registration of the FIR has not affected the Prosecution case.
The learned Counsel for the accused Nos.1 to 3, alternatively, submitted that the charge against accused No.1 may be converted into the one under Section 304 part II IPC. In support of her submission, she relied upon the judgments of the Supreme Court in Satish Narayan Sawant vs. State of Goa1 and Murlidhar Shivram Patekar and another vs. State of Maharashtra2.
In Satish Narayan Sawant (1 supra), the death of the deceased therein was due to a stab injury and though the accused was not initially armed with a weapon, following an altercation, he went inside the house, brought the weapon and stabbed the deceased. On the facts of the said case, the 1 2009 AIR SCW 6077 2 (2015) 1 Supreme Court Cases 694 CVNR, J & GSP, J Crl.A.No.1328 of 2011 16 Dt: 30.07.2018 Supreme Court has convicted the accused for the offence punishable under Section 304 Part II IPC.
The facts in the instant case are almost identical to that in Satish Narayan Sawant (1 supra). This is also a case where accused No.1 was not initially armed with any weapon and after an altercation, he went inside the house brought the knife and given two blows to the deceased. These facts would show that accused No.1 did not have the prior intention of causing the death of the deceased and that under sudden provocation, he brought the knife and caused the death of the deceased. However, having regard to the fact that accused No.1 not only brought the knife from his house but also attacked the deceased on his two vital parts viz., left lung and head and as PW.12- Civil Assistant Surgeon, who issued Ex.P.6- Post Mortem Certificate, opined that the deceased appeared to have died due to injury to left lung, we are of the opinion that he developed an intention to kill the deceased on the spot and caused the death. In these facts and circumstances of the case, we are of the opinion that this case falls under Part I of Section 304 IPC and accordingly, the conviction of accused No.1 is altered from Section 302 CVNR, J & GSP, J Crl.A.No.1328 of 2011 17 Dt: 30.07.2018 IPC to one for the offence under Section 304 Part I IPC and the sentence is reduced to 10 years Imprisonment instead of Life Imprisonment as awarded by the lower Court.
As regards the conviction of accused No.1 for the offence punishable under Section 148 IPC, as the other accused were acquitted of the said charge, he cannot be convicted for rioting with deadly weapons as a member of an unlawful assembly. Therefore, his conviction for the said offence is set aside.
With respect to the conviction of accused No.1 for the offence under Section 324 IPC, in our opinion, the same is not sustainable because once he was convicted for the offence under Section 307 IPC, which is a graver offence, it is wholly illogical to convict him for a lesser offence such as causing injury to PW.8. Hence, the conviction of accused No.1 for the offence under Section 324 IPC is set aside.
The conviction and sentence of accused No.1 for the offence punishable under Section 307 IPC for attempting to kill PW.8 are confirmed.
In the result, the Criminal Appeal is partly allowed.
CVNR, J & GSP, J Crl.A.No.1328 of 2011 18 Dt: 30.07.2018 The conviction and sentence recorded against appellant Nos.2 and 3/accused Nos.2 and 3 for the offences punishable under Sections 302 r/w 149 and 147 IPC are set aside. The fine amount, if any, paid by them shall be refunded to them. The bail bonds of appellant Nos.2 and 3/accused Nos.2 and 3 shall stand cancelled. They are directed to surrender themselves before the Superintendent, Open Air Jail, Anantapur, for completion of the legal formalities for their release from the said Jail.
The conviction and sentence recorded against appellant No.1/accused No.1 in the aforesaid Judgment, (i) for the offences punishable under Sections 148 and 324 IPC are set aside and the fine amount paid by him shall be refunded to him; (ii) for the offence punishable under Section 307 is confirmed; and (iii) for the offence punishable under Section 302 IPC are modified to that of the offence punishable under Section 304 Part I IPC and appellant No.1/accused No.1 is, accordingly, sentenced to suffer Rigorous Imprisonment for a period of ten years and the fine imposed for the said offence is confirmed. All the sentences shall run concurrently and the period of sentence already undergone by appellant No.1/accused No.1 is CVNR, J & GSP, J Crl.A.No.1328 of 2011 19 Dt: 30.07.2018 directed to be set off. The bail bonds of appellant No.1/accused No.1 shall stand cancelled. He is directed to surrender himself before the Superintendent, Central Jail, Kadapa, for serving the remaining sentence, if any.
______________________ (C.V.Nagarjuna Reddy, J) _______________________ (Gudiseva Shyam Prasad, J) Dt: 30th July, 2018 lur