BYYAPAGU SUBBA RAO Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) The appellant Byrapogy Subba Rao aged 20 years, a resident of Nellore town, is a Painter by profession. He was tried by the Sessions Judge, Nellore, in Sessions Case No. 23/80 for an offence under S. 302 IPC for causing the death of one Dontala Sivaiah, a college student at 9.30 p.m. on 11/01/1980 in front of the shop of one Palicherla Madhusudan Reddy (P.W. 1) at Tadikala Bazaar centre, Nawabpet, Nellore. The Sessions Judge convicted him under S. 302 IPC and sentenced him to suffer imprisonment for life. The appeal came up for hearing before a Division Bench of this court consisting of Madhava Rao, and Ramaswamy JJ. They were divided in their opinion. Madhava Rao, J. held that the offence under S. 304 Part II IPC only was made out against the appellant. While, therefore, acquitting the appellant under S. 304 Part II IPC and sentenced him to suffer rigorous imprisonment for seven years. Ramaswamy, J. on the other hand held that the appellant was properly convicted under S. 302 IPC and sentenced to suffer imprisonment for life. He accordingly dismissed the appeal. The appeal is, therefore, referred to a third Judge under S. 392 Cri.P.C. for his opinion. That is how the appeal has come up before me.

(2.) A picture Yedantastula Meda was released in Nellore town for exhibition on 11-1-1980. It was being exhibited in Sundar Deluxe theatre at Nellore. The prosecution case as set out in the charge-sheet reads as follows. The deceased Dontala Sivaiah and Byrapogu Bhaskara Rao (P.W. 4) each purchased a ticket in advance for the matinee show. While they were on their way to the theatre and came near a school, the accused met the deceased and demanded him to give his ticket to the accused. The deceased refused to part with his ticket in favour of the accused. The accused then tried to snatch away the ticket from the deceased forcibly. Both the accused and the deceased quarrelled with each other during that scuffle, the ticket in the possession of the deceased was torn. P.W. 4 interfered and separated the accused and the deceased and asked them to go away. The accused while going, threatened the deceased with dire consequence. P.W. 4, however, attended the matinee show but the deceased could not attend the matinee show and left the place. At about 9.30 p.m. on the same day the deceased on his way to the theatre went near the shop of P.W. 1 where P.W. 1 was sitting and talking with P.W. 2 the accused then came there and found fault with deceased for quarrelling with him earlier, took out a knife from his waist and stabbed the deceased on the left side of his chest. P.W. 3 who was also present at that time, witnessed the incident. On hearing the alarm, P.W. 5, another neighbour rushed to the spot and found Sivaiah lying down with the injury and the accused running away carrying a knife. P.W. 3 engaged a rickshaw and carried the injured Sivaiah to the Government Head Quarters Hospital, but Sivaiah died by the time the rickshaw could reach the hospital. P.W. 4 on hearing about the incident, immediately went to the shop of P.W. 1 and when he was informed that the accused stabbed Sivaiah, he proceeded on a cycle towards the hospital and came across the rickshaw in which Sivaiah was being carried and was informed that Sivaiah died. P.W. 4 returned back to the shop of P.W. 1 and informed him that Sivaiah expired. P.W. 1 then proceeded to II Town Police Station and lodged the report Ex. P. 1 with the Sub-Inspector of Police, P.W. 11. P.W. 11 and the Inspector of Police P.W. 12 investigated into the case. The accused was found near the Pennar River Bridge on the same night and he was taken into custody. When he was questioned, he made a statement leading to the recovery of the knife M.O. 1 which was found to be bloodstained.

(3.) I have been taken through the material evidence. P.W. 4 has given evidence regarding the quarrel which took place on that day between the accused and the deceased at about 2 p.m. and that the accused while leaving the place, said :