BALASWAMY Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) Accused 1 to 3 in Sessions Case No. 17 of 1979 OH the file of the Additional Sessions Judge, West Godavari Division at Eluru are the appellants. They are convicted under section 304 Part II read with Sec. 34 of the Indian Penal Code and each of them is sentenced to undergo rigorous imprisonment for a period of five years. A-1 is further convicted under Sec. 323 of the Indian Penal Code for causing hurt with stick to P.W. 1 and is sentenced to undergo rigorous imprisonment for a period of three months. A-2 is also convicted under Sec. 324 of the Indian Penal Code for causing simple hurt to P. W. I. and sentenced to undergo rigorous imprisonment for a period of six months. The convicted accused i.e.. A-1 to A-3 preferred this present appeal. These three accused along with seven others were tried for offences punishable under Sections 147, 148 and 302 read with Sec. 149 of the Indian Penal Code apart from for the minor offences for causing hurt to P. W. 1. The learned Additional Sessions Judge howeves acquitted A-4 to A-10 completely.

(2.) Initially the appeal came up before our learned brother Muktadar J. Sri M. Dwarakanath, the learned counsel for the appellants, raised a preliminary point viz., the conviction itself is illegal inasmuch as there is no charge under Sec. 302 read with 34 of the Indian Penal Code. It was argued before our learned brother Muktadar, J. that when ten accused persons where charged under Sec. 302 read with Sec. 149 of the Indian Penal Code and when seven of them were acquifted the remaining three accused viz. the appellants cannot be convicted by the application of Ssction 34 of the Indian Penal Code under Sec. 304 Part-II read with Section 34 of the Indian Penal Code. The sum and substance of the submission was when there was no charge under Sec. 34 of the Indian Penal Cods the same cannot be invoked. Reliance was placed by the learned Public Prosecutor on a decision of a DivisionBench of this Court in A. Gopaiah vs. State of A. P. wherein it has been held that even without a specific charge under sec. 302 read with Section 34 of the Indian Penal Code of the Court on the evidence comes to the conclusion that the particular accused have shared the common intention they can be convicted of such offence. Sri M. Dwarakanath, the learned counsel for the appellants, however relied on a decision of the Supreme Court in Maina Singh vs. State of Rajastan in support of his contention that such a conviction cannot be maintained. Our learned brother Muktadar, J- having come to the counclusion that the decision of the Supreme Court (2supra) was not brought to the notice of the Division Bench felt that the case must go before a Division Bench for authoritative pronouncement- That is how the matter has come up before us.

(3.) Before we deal with the question of law involved we shall state the necessary facts. The three appellants and the other seven accused viz , A-4 to A-10 are all residents of Denduluru. A-l to A-3 are brothers, A-4 and A-5 are brothers and others are close associates of A-l to A-3. The deceased and his sons P.Ws. 1 to 3 and P.\V. 5 are also residents of Denduluru. Some time back A-9 used to watch the fields of one Veeramachaneni Chowdary. While so P.W. 3 was employed to water the same to an extent of Ac. 6-00. Therefore the accused bore grudge against the family of the deceased. A-9 removed the obstruction kept in the sluice to prevent water. Suffice it to say that the feelings between the two groups are strained. While so on 11-8-1978 at about 8 p.m. near Motaparthivari tank, Denduluru A-1, A-3 to A-10 armed with sticks and A-2 armed with a spear formed into an unlawful assembly with the common object of attacking the deceased. On 11 8-1978 earlier to the incident there was a quarrel between P.W. 3 and A-9. During that quarrel P.W.12 after finishing his work was proceeding to his house at about 8 p.m. and when he reached the culvert he found all the accused sitting. A-2 owed Rs. 2/- to PW 1 & PW 1 asked him to pay the same. A-2 said that he would pay the same on the next day. While P. W. 1 was proceeding further P.W. 2 and the deceased came in the opposite direction and asked him as to why he stayed so late in the night. In the meanwhile A-l to A-3 came from behind and A-l beat P.W. 1 with a stick on his right leg and A-2 beat him with a fpear on the right side of the fore-head and A-2 exhorted others to teat the deceased and he also speared the deceased on the head and all the accused beat the deceased indiscriminately on bis body with sticks. P.W. 2 who warded off the blows also received injuries. The accused having infliced the injuries left the place. P.W.1 proceeded to the house of Motapanhi Ramamohana Rao, former M.L A. and on the way he met P.W.12 and told him that the accused were beating his father and brother. P W.3, at that time came there and P.W.I and P.W.3 went to the house of Ramamohana Rao and there they found P.W.13 talking to Ramamohana Rao. They informed him as to what happened, and Ramamohana Rao instructed P.W.13 to see what it was and instructed P.Ws.l and 3 to follow him. All of them went to the village and found the deceased lying and groaning. The deceased was brought to the Government Head quarters Hospital Eluru accompanied by P.Ws. 1,5,7 and 12. The injured viz., the deceased and P.W.I were examined by the Doctor, P.W,22. He sent intimations to the police and the Magistrate. F.W.19, the head constable received the intimation and came to the hospital and found the deceased Daniel groaning and could not give out any statement. P.W.I however gave a statement, Ex.P-1 at midnight and P.W 24, the I Additional Munsif Magistrate, Eluru also came to the hospital and recorded a statement Ex.P.17 from the deceased. P.W 2, the Doctor on duty also certified the same, but no names have been mentioned in the statement, Ex,P.17. Exs P-J and P-17 the two statements were sent to the Taluk Police Station, Eluru and the Sub-Inspector of Police, P W 29 registered the case as Crime No. 133/78 and sent copies of the F.I R. to the concerned and later on the intimation about the death of the deceased Ex.P 1 which was registered under sec 147,148, 323&324 of the Indian Penal Code was altered into one under Sec. 302 of the Indian Penal Code and express F.I.Rs. have been issued again, and took over the investigation. The body of the deceased was sent for post-mortem and P W 22 conducted the autopsy and found as many as 9 sutured wounds and on opening the sutures on the head he found epicranial haematoma on the temporal region and also haemorshage He opined that the deceased died due to shock and haemorrhage on account of the multiple injuries. Meanwhile the accused were arrested and A-2, A-3 and A-9 who are also having injuries were produced before the Doctors P.W 26 and P W 27 and P W 26 examined A-2 and A-3 and P.W 27 examined A-9. They found simple injuries on the persons of A-2 A-3 and A-9, After completion of the investigation the charge-sheet waS laid,