Pogula Komuraiah v. the State of A.P. Rep. by the Public Prosecutor [pasayat, J.]

Judgment

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 94 of 2008. From the final Judgment and Order dated 27.7.2006 of c the High Court of Judicature, Andhra Pradesh at Hyderabad in Crl. A. No. 1114/2005 S. Sadasiv Reddy and S. Usha Reddy for the Appellant. Altaf Fathima and D. Bharathi Reddy for the Respondent. The Judgment of the Court was delivered by DR. ARIJIT PASAYAT, J.

1Leave granted.

2Challenge in this appeal is to the judgment of a Division Bench of Andhra Pradesh High Court, disposing of four Criminal E 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 'IPC').

4The High Court by the impugned order disposed of the appeals with the following observations: rf "In the result, Crl.A.No. 1114 of 2005 is allowed in G -1:·' .. ~ 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 l.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." 8

5It is to be noted that the appellant was accused no.12 (for short A 12) 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: " .... 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 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."

6Learned 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.

7Learned 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.

8It is to be noted that the High Court with reference to the evidence of PW1 noted as follows: POGULA KOMURAIAH v. THE STATE OF A.P. REP. BY THE PUBLIC PROSECUTOR [PASAYAT, J.] "19. Sri C.Padmanabha Reddy, the learned Senior A 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 B 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 c 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 D 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 deceased with sticks, we G are unable to agree with the argument that the witnesses improved the version by attributing overt acts to the accused in the evidence ... "

9Above being the position, the findings recorded in Criminal Appeal no.222 of 2006 by this Court are applicable to A the present appeal. Accordingly appellant's 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 B do not warrant any interference. The sentences shall run concurrently.

10The appeal is allowed to the aforesaid extent. K.K.T. Appeal partly allowed.