IN RE: MUPPANA APPANA AND ORS. Vs. STATE

JUDGEMENT

(1.) THE five appellants have been convicted by the Sessions Judge of East Godavari of an offence punishable under Section 395 of the Indian Penal Code. Since death had resulted from an injury caused by the first appellant, he was sentenced to transportation for life. The other appellants were sentenced to ten years' rigorous imprisonment each.

(2.) THE deceased had been on bad terms with appellants 1 to 3 for some time, because the first appellant I ad abducted his daughter, Appayamma and after keeping her for some time had sent her back. The second appellant had abducted the niece of the deceased ; and she too was sent back after some time. The first three appellants are brothers. The fourth and fifth appellants are friends and associates of the first appellant. On the night of the 25th/26th of June last, while the deceased, his wife (P.W. 7), his daughter (P.W. 10), and his son (P.W. 11), were sleeping outside near their house, the five appellants came there. P.W. 7 woke up and asked the man nearest her who he was and why he had come. That man was the first appellant. He immediately struck her on the left leg and left arm, She saw the other appellant standing there, the first appellant who had beaten her being armed with a crowbar and the others with sticks. Her cries attracted her husband, who came to her side. As soon as he arrived, he was attacked by the first appellant with the crowbar that was in his hand and struck on his left thigh and left upper arm. P.W. 10, the daughter of the deceased, came to his assistance and was also beaten. The appellants then began to break open the house, the first appellant using his crowbar and the other appellants assisting in various ways, the fourth and fifth appellants standing outside to keep people from entering the house. Two boxes that were inside were removed and opened and left not far away from the house. While the boxes were being removed, P. W. 11, the son of the deceased, came on the scene and was also beaten.

(3.) THE appellants were charged under Section 396 of the Indian Penal Code with conjointly committing dacoity and that while doing so, one of their number (the first accused) committed murder. The learned Judge came to the conclusion that since the injury to the deceased was not such as to make the person causing it guilty of murder, he acquitted the appellants of the offence with which they were charged, but invoking his powers under Section 238 of the Code of Criminal Procedure, he found them guilty of the minor offence of dacoity. An offence punishable under Section 396 of the Indian Penal Code is triable by assessors, whereas an offence punishable under Section 395 of the Code is triable by a jury. It is argued that it was not open to the learned Sessions Judge to convict the appellants of an offence triable only by a jury.