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CASE NO.: Appeal (crl.) 249  of  2001 Appeal (crl.)   742      of  2002

PETITIONER: MOHD. YAKUB @ PEDDA YAKUB

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH

DATE OF JUDGMENT:       30/07/2002

BENCH: R.C. LAHOTI & BRIJESH KUMAR

JUDGMENT:

R.C. Lahoti, J.

       Leave granted in SLP(Crl.) No.2899/01.

       Mohd. Yakub @ Pedda Yakub (accused no.4) and Nelluri Kondalu @ Maliyadri (accused no .6) have both  been held guilty of the offence punishable under Section 302 IPC as also unde r Section 148 IPC.  Each of them has been sentenced to imprisonment for life under Section 3 02 IPC and rigorous imprisonment for one year under Section 148 IPC.  The two accused have p referred two appeals by special leave.         There were eight accused persons before the Sessions Court tried on charges under Se ctions 302, 147 and 148 IPC.  Accused nos.7      and 8 were charged under Section 304-II/149  IPC.  During the trial accused nos.2 and 5 died and the trial proceeded against six accused  persons only.  Four accused other than the two before us, have not challenged the judgment  of the High Court.      We are therefore concerned with dealing the cases  of two accused pe rsons only.         The deceased and the accused persons were friends.  The deceased and Mohd. Ghouse, t he accused No.1 - both had illicit intimacy with a lady Home Guard whose brother is PW1.  Th is led to relations between the deceased and the accused no.1 becoming strained.  On 14.10.1 993 shortly after the mid-day PW1, PW2, PW4 and two others including the deceased had gone t o theatre to see a matinee show.  When they came out, accused no.1 dealt a blow on the foreh ead of the deceased with an iron rod.  The deceased started running for his life towards pol ice club.  Accused nos.2 to 8 who were lying in wait chased the deceased and attacked him.   The accused persons were differently armed.      The deceased sustained several injuries.  A s the post-mortem report reveals there were six lacerated wounds, one contusion and 10 incis ed wounds spread over different parts of the body of the deceased.  Out of these injuries an  incised wound 3" x 2" x 1" was situated over left side of the chest and an incised wound 11 /2" x 1/4" x 1/4" was situated over left upper part of the abdomen.  Both the injuries were  caused by sharp objects.  Each of the two accused-appellants before us was armed with a knif e which was used by him.  The injury on left side of the chest of the deceased is attributed  to accused 6 while the injury on left upper  part of the abdomen of the deceased is attribu ted to accused - 4.  The medical evidence is that the death of the victim was caused on acco unt of injury to vital organs, i.e., heart and lung which injuries were sufficient in the or dinary course of nature to cause death.         It is not necessary for us to deal with evidence in details inasmuch as there are fo ur eye-witnesses to the incident whose testimony has been examined in very many details by t he Sessions Judge as also by the High Court and both the Courts have found proved beyond any  reasonable doubt the participation of all the accused persons in the incident and the two a ccused-appellants before us having caused the two injuries attributed to them.  Though the l earned counsel for the two appellants have read the evidence of the eye-witnesses and offere

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d some criticism thereof, however, in spite of giving our anxious consideration to the submi ssions made by the learned counsel for the two appellants we are satisfied that no fault can  be found with the finding arrived at by the Sessions Court and upheld by the High Court.  T he participation of all the accused persons, including the two appellants before us, in the  incident is amply proved.  All the accused persons had formed an unlawful assembly, the memb ers whereof were armed with deadly weapons.      The two accused appellants had aimed at vit al organs of the body of the deceased while inflicting injuries and the injuries caused by t hem have proved to be fatal.  The attack by the accused persons was indiscriminate and they  were determined to kill the deceased. While inflicting injuries they chased the deceased and  did not allow him to escape and they continued to assault him even after he had fallen on t he ground.      In this background alternative submission of the learned counsel for the app ellants that the conviction of the two accused-appellants should have been under Section 304  Part II of the IPC as they have been found to have inflicted only one injury each while the  deceased has died on account of multiple injuries suffered by him, cannot      be accepted.  However, in our opinion the accused appellants should have been convicted more appropriatel y under Section 302 read with 149 IPC rather than under Section 302 IPC alone.

       For the foregoing reasons the conviction of the accused appellants under Section 302  IPC is altered to one under Section 302/149 IPC and except for this variation the appeals a re dismissed. The sentences passed on the two accused-appellants are maintained.