GADDALA DESHAIAH Vs. STATE OF A P

JUDGEMENT

(1.) A2, who was convicted for an offence under Section 364 IPC and sentenced to undergo rigorous imprisonment for a period of four years and also to pay a fine of Rs.500/- in default, to undergo rigorous imprisonment for one month in Sessions Case No. 101 of 1995 on the file of Additional Sessions Judge, Khammam, on 13.2.1998, had preferred the present appeal.

(2.) Sri P. Prabhakar Reddy, Counsel representing the Appellant-Accused No.2 would contend that the charges framed as against A1 to A5 in Sessions Case No.101 of 1995 were under Sections 147, 302 read with Section 149 IPC and no specific charge was framed under Section 364 IPC. The learned Counsel also would contend that Section 364 IPC is a substantive and distinct offence falling under different chapter altogether and in the absence of framing of a specific charge in this regard, serious prejudice is caused and thus, the trial itself is vitiated and the Appellant-A2 is entitled for an acquittal on this ground alone. The learned Counsel also would contend that even otherwise the ingredients under Section 364 IPC are not satisfied. The learned Counsel would submit that the evidence of P. W.I-son of the deceased, the alleged eye-witness was disbelieved, and that the learned Judge having recorded an acquittal in relation to the charges under Sections 147, 302 read with Section 149 IPC, definitely erred in convicting the Appellant-A2 only under Section 364 IPC. The learned Counsel had taken this Court through the evidence of P.Ws.l to 9 and also Exs.Pl to P8 and also M.O.I and would contend that an acquittal to be recorded even in the case of Appellant-A2. The learned Counsel also placed strong reliance on Sohan Lal alias Shohan Singh v. State of Punjab, 2004 (1) ALD (Crl.) 1 (SC) = 2003 Crl. LJ 4569.

(3.) Per contra, the learned Additional Public Prosecutor would contend that Section 364 IPC deals with kidnapping or abducting in order to murder and this cannot be said to be a distinct offence since it is related to murder, and on facts, the learned Judge came to the conclusion that the ingredients of Section 364 IPC are satisfied so far as it relates to the Appellant-A2 and had recorded conviction and had sentenced him accordingly, and that no prejudice is caused to the Appellant-A2. The learned Additional Public Prosecutor placed strong reliance on Banwarilal Jhunjhunwala v. Union of India, AIR 1963 SC 1620, in this regard.