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2007 DIGILAW 1181 (AP)

Shivarathri Venkataiah v. State of Andhra Pradesh

2007-12-03

GOPALA KRISHNA TAMADA

body2007
JUDGMENT ;- The accused, who are the appellants herein, were tried in S.C. No.248 of 2000 by the learned II Additional Sessions Judge, Warangal for the alleged offence punishable under Section 302 read with 34 IPC. In all, the prosecution examined PWs.1 to 15 and got marked Exs.P.1 to P.10. The 1st appellant-A1 was examined as DWI and Exs.D.1 to D.3 were marked on behalf of the defence. The trial Court, having considered the entire evidence on record, found the accused guilty of the offence punishable under Section 304 Part-II read with 34 IPC and sentenced them to undergo simple imprisonment for a period of five years and to pay a fine of Rs.500/- each, in default, to suffer simple imprisonment for three months. 2. The case of the prosecution is that deceased-Alifaiah and A1 i.e. S. Venkataiah are the sons of Yellaiah, who was examined as PW2. PW2 has five sons. Three years prior to the date of offence, PW2 partitioned his property and each of his sons got Ac.00.30 guntas of land and Ac.00.08 guntas of Chelka. All of them are residing separately. Manjula is the wife of Biksham, the third son of PW2. Biksham died seven months prior to the date of incident. Two days before the date of incident, Mmifula's father, who was examined as PW5, came to the house of PW2, assisted Manjula in the transplantation of paddy in her fields. On 28.7.1999, when PW5 was trying to cut a Babul tree situated adjacent to the land belonging to the deceased-Alifaiah, A2, who is the wife of A1, objected him trom cutting the tree. In the evening, when Anjaiah questioned A2 as to why she had objected PW5 from cutting the tree, she abused the deceased, caught hold of his collar and dragged him to a distance where Al dealt a blow on him with a blunt portion of an axe given to him by his son, as a result, the deceased received bleeding injuries. Immediately, he was given the First Aid by one R.M.P. doctor, who was examined as PW7. As per his advice, the deceased was taken to M.G.M. Hospital, Warangal where he died at 3.00 p.m., while undergoing treatment. Immediately, he was given the First Aid by one R.M.P. doctor, who was examined as PW7. As per his advice, the deceased was taken to M.G.M. Hospital, Warangal where he died at 3.00 p.m., while undergoing treatment. On the basis of a report given by PWI i.e., the wife of the deceased, the police registered a case in Cr.No.66 of 1999 against the appellants and their son and issued F.I.R. to the concerned. After recording the statement of PW1, the Sub-Inspector of Police, who was examined as PWI4, proceeded to M.G.M. Hospital, conducted inquest in the presence of PW8 and Rajender Reddy, recorded the statements of PWs.2 to 5, sent the dead body for post-mortem examination and handed over the investigation to the Inspector of Police, who was examined as PWI5. The Assistant Professor, Forensic Medicine, Kakatiya Medical College, Warangal, on receipt of requisition from PW 14, conducted autopsy over the dead body of the deceased and opined that there is a contusion on both parietal regions of brain and the injuries must have been caused with a blunt object with heavy force and the same are sufficient to cause the death in the ordinary course of nature. PW 15 took over investigation from PWI4, proceeded to the scene of offence, conducted scene of offence panchanama in the presence of PW 10 and seized bloodstained and controlled earth. He prepared a rough sketch of the scene of offence, which was marked as Ex.P8, and examined PWs.6, 7, and 8 and recorded their statements. On reliable information, PW 15 went to Sannooru Village, arrested the accused on 8.8.1999 and recorded their confessional statements in the presence of PWs.12 and 13. The axe with which the death of the deceased was caused was recovered on the basis of the confession and the recovery panchanama, which was marked as EX.P 9. After completing the entire investigation, the Inspector of Police i.e. PW 15 filed charge-sheet. As the son of the appellants is a juvenile, the Juvenile Court tried him and after examining the witnesses, acquitted him of the charge. 3. The learned Counsel for the appellants has vehemently contended that there was no prior conspiracy or premeditation and there is absolutely nothing on record to establish that the appellants shared common intention and the trial Court erred in convicting the appellants of the offence punishable under Section 304 Part-II read with 34 IPC. 3. The learned Counsel for the appellants has vehemently contended that there was no prior conspiracy or premeditation and there is absolutely nothing on record to establish that the appellants shared common intention and the trial Court erred in convicting the appellants of the offence punishable under Section 304 Part-II read with 34 IPC. He has further contended that the accused have neither intention nor knowledge that their acts are likely to cause death for the purpose of bringing their actions within the ambit of Section 304 part-II IPC. Moreover, there are so many discrepancies in the evidence of the prosecution witnesses, as such, the trial Court ought to have rejected the evidence. 4. Per contra, the learned Additional Public Prosecutor has opposed the submission and stated that the trial Court considered the entire evidence on record and as the incident happened in an anxious moment though it was not the intention of the appellants to kill the deceased, the trial Court, accepting the evidence of the doctor i.e. PW 11 that the injuries are sufficient to cause the death in the ordinary course of nature, found them guilty of the offence punishable under Sertion 304 Part-II. 5. The most important witness in this case is PW2. No doubt, there are certain discrepancies in the evidence of the prosecution witnesses, but in my considered view, they may not go to the root of the case because the evidence of PW2 is clinching. No father would come forward and speak falsehood against his son who faced the trial. Hence, this Court perused the evidence of PW2, who clearly stated that "the deceased-Anjaiah came to the house at about 6.00 p.m. and enquired his wife about the quarrel. Deceased-Anjaiah questioned A2 why she opposed Biksham in cutting the tree. Then A2 abused his son and questioned his son as to why he was interfering in each and every matter, and caught hold of the collar of the deceased and dragged him. The son of A 1 brought an axe and gave it to A 1. AI, then, dealt an axe blow on the head of the deceased with its blunt portion and A2 was holding the deceased. Deceased received bleeding injuries". This evidence, in my considered view, is most trustworthy and there is absolutely nothing to discredit it. The son of A 1 brought an axe and gave it to A 1. AI, then, dealt an axe blow on the head of the deceased with its blunt portion and A2 was holding the deceased. Deceased received bleeding injuries". This evidence, in my considered view, is most trustworthy and there is absolutely nothing to discredit it. But, from the facts, it is clear that there was a fight between the brothers, during the course of which, one brother died i.e., the deceased, for which, in my considered view, neither Section 302 nor 304 Part-II IPC can be applied particularly with the facts of the case on hand. Hence, this Court is of the view that the trial Court though accepted the evidence in its right perspective, committed an error in holding that the appellants were guilty of the offence punishable under Section 304 Part-II IPC. As the offence proper is accepted by this Court, the appellants are found guilty of an offence punishable under Section 326 IPC. Section 34 IPC, which deals with common intention, enunciates that when a criminal act is done by several persons in furtherance of the common intention, each one of such persons is liable for that act in the same manner as if it were done by him alone. It is no doubt true that the learned Counsel for the appellants has contended that A2, who is the 2nd appellant i.e., the wife of A1, has not shared the common intention of AI, but from the evidence of PW2, it is clear that it is only when she caught hold of the deceased, A 1 hit him with the blunt portion of the axe. From this it is clear that she is liable for the offence punishable under Section 34 IPC. Hence, the appellants are liable to be convicted under Section 326 read with 34 IPC. 6. Accordingly, the appellants are convicted of the offence punishable under Section 326 read with 34 IPC instead of Section 304 Part-II IPC. However, the sentence of simple imprisonment for a period of five years each imposed by the trial Court on the appellants is reduced to two years and the fine amount shall be maintained. The period of sentence, if any, undergone by the appellants shall be given set off. 7. In the result, this criminal appeal' is partly allowed.