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CASE NO.: Appeal (crl.)  94 of 2008

PETITIONER: Pogula Komuraiah

RESPONDENT: State of A.P.Rep. by the Public Prosecutor

DATE OF JUDGMENT: 15/01/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No.6190 of 2007)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.    Challenge in this appeal is to the judgment of a Division  Bench of Andhra Pradesh High Court, disposing of four  Criminal Appeals i.e. Criminal Appeal nos. 1114, 1128, 1130  and 1155 of 2005.   

3.      16 accused persons were charged for offence punishable  under Sections 147, 148, 448 read with Section 149 and  Section 302 read with Section 149, 324 read with Section 149  of the Indian Penal Code, 1860 (in short \021IPC\022).

4.      The High Court by the impugned order disposed of the  appeals with the following observations:

       \023In the result, Crl.A.No. 1114 of 2005 is  allowed in part. Crl. A.No.1128 of 2005 is  allowed.  Crl. A.No.1130 of 2005 is dismissed.   Crl. A.No.1155 of 2005 is allowed. The  convictions and sentences imposed by the  lower Court on A-1, A-3, A-7 to A-9, A-12 and  A-13 for the offences under Sections 302 read  with Section 149, 148, 448 read with 149, 324  read with 149 of I.P.C., are confirmed.  The  convictions and the sentences imposed on A-2,  A-4 to A-6, A-10, A-11 and A-14 to A-16 for all  offences are set aside and they shall be set at  liberty forthwith, if they are not required in  any other crime.\024      5.      It is to be noted that the appellant was accused no.12 (for  short A12) before the Trial Court.  It is relevant to note that  accused nos. 1 and 3 filed SLP (Crl.) no.5591 of 2006 before  this Court which was subsequently converted into Criminal  Appeal no.222 of 2006. By judgment dated 19th February,  2007 the appeal was partly allowed with the following findings:

       \023\005.If the evidence on record is considered  on the touchstone principles set out above the  inevitable conclusion is that the proper  conviction would be Section 304 Part I IPC  instead of Section 302 IPC.  The conviction of  the appellants is accordingly altered from

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Section 302 read with Section 149 to Section  304 Part I read with Section 149 IPC.   Custodial sentence of 10 years would meet the  ends of justice.  The findings of the guilt in  respect of other offences and the sentences  imposed do not warrant interference.  The  sentence shall run concurrently.                The appeal is allowed to the aforesaid  extent.\024       6.      Learned counsel for the appellant submitted that the  present appellant stands in the same footing as the appellants  in Criminal Appeal no.222 of 2006 and the present appeal  may be disposed of on similar terms.

7.      Learned counsel for the respondent-State submitted that  the present appelllant was armed with an iron rod, while the  appellants in Criminal Appeal no.222 of 2006 were armed with  lathi. Therefore, the similar treatment cannot be given to the  present appellant.   

8.      It is to be noted that the High Court with reference to the  evidence of PW1 noted as follows:

\02319. Sri C.Padmanabha Reddy, the learned  Senior Counsel for the appellants submitted  that there was a delay of five hours in  preferring the complaint and there were no  specific overt acts attributed to the accused  and omnibus allegations were made.  The  medical evidence is not corroborating with the   oral evidence and the deceased has no  premeditation to kill the deceased and no  motive was suggested by the prosecution for  the commission of the offence and it was only  in respect of the hiring of the Auto rickshaw by  the deceased.  He further submitted that in  Ex.P-1 complaint only seven accused were said  to be attacked and the witnesses mentioned in  the inquest report were not examined.  PW-1  attributed overt acts only to A-12 and A-13  and the remaining accused were said to be  beaten with sticks which is different from the  version given in Ex.P-1.  Though PWs. 5 and 6  stated that all the accused attacked, their  names were not mentioned in Ex.P-1.  the  overt acts attributed to the accused during the  course of evidence were not mentioned in the  earlier statements and the whole version is  subsequently developed to strengthen the  prosecution.  The receipt of injuries by PW-2  was not corroborated with the evidence of the  Doctor who examined PW-2.  Though the  accused were attributed overt acts of beating  the deceased, there were no corresponding  injuries on the deceased and for the alleged  recovery of properties, the recovery panch  turned hostile and did not support the  prosecution case and as A-13 was implicated  in this case, all the accused are entitled for  benefit of doubt and they are entitled for  acquittal.

24.     Since there is specific mention about A-1,  A-3, A-7 to A-9, A-12 and A-13 beating the

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deceased with sticks, we are unable to agree  with the argument that the witnesses improved  the version by attributing overt acts to the  accused in the evidence\005 \024           

9.      Above being the position, the findings recorded in  Criminal Appeal no.222 of 2006 by this Court are applicable to  the present appeal. Accordingly appellant\022s conviction is  altered to Section 304 Part I read with Section 149 IPC as was  done in the case of the appellants in the aforesaid appeal.   Custodial sentence of 10 years would meet the ends of justice.  The findings of the guilt in respect of other offence and the  sentences imposed do not warrant any interference. The  sentences shall run concurrently.

10.     The appeal is allowed to the aforesaid extent.