307 Of I.P.C. Ex.P.4 Is F.I.R. He ... vs Unknown
2023 Latest Caselaw 3292 AP

      THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

              CRIMINAL APPEAL NO.1707 OF 2009

ORDER:-

      Challenging the judgment, dated 25.11.2009 in Sessions

Case No.68 of 2006, on the file of Assistant Sessions Judge,

Parvatipuram at Vizianagaram ("Assistant Sessions Judge" for

short), the unsuccessful accused therein filed the present

Criminal Appeal questioning the conviction and sentence imposed

against him under Section 307 of the Indian Penal Code ("I.P.C."

for short).

      2)      The parties to this Criminal Appeal will hereinafter be

referred to as described before the Court below for the sake of

the convenience.

      3)      The Sessions Case No.68 of 2006, on the file of

Assistant Sessions Judge, Parvatipuram at Vizianagaram, arose

out of a committal order in P.R.C.No.15 of 2006 of Judicial

Magistrate of First Class, Vizianagaram, relating to Crime No.121

of 2005 of Bhogapuram Police Station.

      4)      The case of the prosecution according to the charge

sheet filed by the Sub-Inspector of Police, Bhogapuram Police

Station in Crime No.121 of 2005 of Bhogapuram Police Station is

as follows:
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     (i) The accused is resident of Jeerupeta village, Bheemili

Mandal of Vizianagaram District. During the night of 12.12.2005,

the accused offered alcohol to L.W.1-Jeeru Gurumurthy @

Gurumurthy Reddy. During the night of 13.12.2005 at 8-00 p.m.,

when L.W.1 was present in the coconut tope of L.W.5-Jeeru

Adayya, the accused approached L.W.1 and asked him to provide

alcohol. L.W.1 informed him about his inability as he has no

money.    Then, a quarrel took place between L.W.1 and the

accused and they rushed upon against each other armed with

sticks. L.W.3-Jeeru Yerakayya, L.W.4-Lakkoji Appa Rao and

L.W.5 intervened in the dispute as they were present by then.

But, the accused went into the house of L.W.5, a carpenter by his

caste profession and brought a Vuli knife and stabbed L.W.1 with

the said knife in his stomach with a view to kill him in all of a

sudden provocation, resulting of which, L.W.1 fell unconscious.

Immediately, L.W.3 informed about the quarrel to L.W.2-Jeeru

Srinu, L.W.6-Jeeru Narasimha Reddy and L.W.7-Jeeru Polayya

and they rushed to the spot. L.W.6, the brother of the injured,

took the injured in auto of L.W.8-Neelapu Yellayya Reddy to

Abhaya Hospital, Visakhapatnam.

     (ii) Basing on the report given by L.W.2, another brother of

L.W.1 injured, L.W.14-Sub-Inspector of Police, Bhogapuram
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registered a case in Crime No.121 of 2005 under Section 307 of

I.P.C. and investigated into. He inspected the scene of offence

and examined the same in the presence of mediators i.e., L.W.9-

Jeeru Gurumurthy and L.W.10-Jeeru Polayya. He seized two

sticks, controlled and blood stained earth from the scene. He

arrested the accused on 15.12.2005 in the presence of same

mediators. The accused confessed about his commission of

offence and produced Vuli knife which was used by him in

committing the offence against L.W.1. L.W.14 seized the Vuli

knife in the presence of the mediators under mahazarnama.

During investigation he examined the injured after he regained

consciousness in the hospital. He forwarded the material objects

to   L.W.13-N.   Adinarayana,       Assistant   Director,   R.F.S.L.,

Visakhapatnam, through the Office of the Sub Divisional Police

Officer, Vizianagaram for its examination. L.W.11-Dr. K. Raja

Sagar, Abhaya Hospital, Visakhapatnam, who treated the injured,

issued wound certificate opining the injury sustained by L.W.1 is

grievous in nature. L.W.13 conducted Biological and Serological

examination to the material objects and opined that the human

blood is detected on the material objects and that is of "A" group

blood. Investigation disclosed that the accused committed the

offence under Section 307 of I.P.C. Hence, the charge sheet.
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      5)    The    learned    Judicial        Magistrate      of   First    Class,

Vizianagaram, took cognizance of the case under Section 307 of

I.P.C. On appearance of the accused and on complying the

procedure under Section 207 of the Code of Criminal Procedure

("Cr.P.C." for short) relating to supply of copies of documents,

the learned Magistrate committed the case to the Court of

Sessions and thereupon it was numbered as Sessions Case and

was made over to the Assistant Sessions Judge, Parvatipuram at

Vizianagaram.

      6)    On appearance of the accused before the learned

Assistant Sessions Judge, a charge under Section 307 of I.P.C.

was framed and explained to him in Telugu, for which he pleaded

not guilty and claimed to be tried.

      7)    During   the     course      of     trial,   on    behalf      of   the

prosecution, P.W.1 to P.W.7 were examined and Ex.P.1 to Ex.P.6

were marked. Further M.O.1 to M.O.8 were marked on behalf of

the prosecution. After closure of the evidence of the prosecution,

the accused was examined under Section 313 Cr.P.C. with

reference to the incriminating circumstances in the evidence let in

by the prosecution, for which he denied the same. He did not let

in any evidence.
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      8)    The learned Assistant Sessions Judge on hearing both

sides and on considering the oral as well as documentary

evidence found the accused guilty of the charge under Section

307 of I.P.C. and convicted him under Section 235(2) of Cr.P.C.

After questioning the accused about the quantum of sentence,

the learned Assistant Sessions Judge sentenced the accused to

suffer rigorous imprisonment for eight years and to pay fine of

Rs.500/-, in default to suffer simple imprisonment for four

months. As the accused was in judicial custody from 15.12.2005

to 10.01.2006, the remand period was ordered to be set off

under Section 428 of Cr.P.C. Felt aggrieved of the same, the

unsuccessful   accused    filed   the   present   Criminal   Appeal,

challenging the judgment of the learned Assistant Sessions

Judge.

      9)    Now, in deciding the present Criminal Appeal, the

points that arise for consideration are as follows:

      (1) Whether the prosecution before the Court below proved
      that on 13.12.2005 at 8-30 p.m., the accused attacked the
      injured (P.W.1) with an intention to kill him or with such
      knowledge that if he caused death, he would be guilty of
      the murder?

      (2) Whether the judgment of the learned Assistant Sessions
      Judge is sustainable under law and facts?
                                   6



Point Nos.1 and 2:-

       10)     P.W.1 before the Court below was no other than the

injured whose evidence in substance is that the offence took

place on 13.12.2005 at about 8-30 p.m. in the trashing floor of

Jeeru Adiah. He went to the thrashing floor in casual manner. By

that time, Lakkoji Appa Rao (L.W.4), G. Yerakaiah (L.W.3) and

the accused were present. Accused asked him to provide alcoholic

drink. He told him that he has no money on that day. Accused

stated that he (accused) once gave him (P.W.1) alcoholic drink

and he (P.W.1) was not obliging his (accused) request and

slapped him. Then he (P.W.1) took one stick into his hands and

the accused also taken one stick. When they tried to beat each

other, L.W.3-Yerakayya and L.W.4-Appa Rao took away the sticks

from   their    hands.   Then   the   accused   scolded   him   using

unparliamentary language and stating that he should not live and

went to the house of Lakkoji Appa Rao and brought one Vuli

having sharp edge and stabbed P.W.1 on his stomach upper part.

When he pushed the accused with his left hand, he sustained two

injuries on his left hand from the accused. He sustained bleeding

injury and the intestine was also exposed and he fell down and

was unconscious. His elder brother, G. Narasimha (L.W.6), came

to the scene after knowing the incident and took him to the
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private hospital Abhaya in Visakhapatnam. His brother, J. Srinu,

gave report to the police. He was examined by the police in

Visakhapatnam hospital. He was treated as in-patient in the

hospital for 20 days. M.O.1 is Vuli (Carpenter tool) used by the

accused in the commission of offence.

     11)   P.W.2 was the defacto-complainant, who lodged a

report with police having come to know about the occurrence.

His evidence is that the offence took place on 13.12.2005 at night

time, at about 8-30 p.m. At that time he was at his house.

L.W.3-Yerakayya came to his house and informed that the

accused stabbed his brother P.W.1 with one Vuli knife at the

thrashing floor of Jeeru Adiah.       Then, he and his brother Jeeru

Narasimha went to the thrashing floor and found P.W.1 on the

ground with bleeding injuries on his left hand and stomach. On

questioning Yerakayya narrated the incident. P.W.1 was taken to

Abhaya Hospital at Vizag in auto. L.W.3 also present by then. He

gave statement to the police, which is Ex.P.1.

     12)   Coming to the evidence of P.W.3, who was a direct

witness to the occurrence his name is J. Yerakaiah. His evidence

in substance is that on 13.12.2005, the offence took place at

about 8-30 p.m. After completing dinner, he came to the

thrashing floor of Jeeru Adiah to sleep there. The accused, L.W.4
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and L.W.5 were present there. P.W.1 came to the thrashing floor.

The accused asked some liquor and P.W.1 stated his inability to

purchase liquor. The accused beat P.W.1. Then P.W.1 took a stick

into his hands and the accused also took one stick and both of

them prepared to beat each other and they separated them. The

accused stating that P.W.1 is to be killed, went to the house of

Appa Rao, which is situated near the thrashing floor and brought

one Vuli knife (Carpenter tool) and stabbed P.W.1 in his stomach.

The intestine came out and P.W.1 sustained bleeding injury. The

entire shirt was blood stained. M.O.1 is the Vuli (already

marked). He went to the village and informed the incident to

P.W.2 and his brother Narasimhulu. He came again to the

thrashing floor along with P.W.2 and Narasimhulu. They found

P.W.1 was unconscious state of mind and bleeding was blocked

with a towel and he was taken to the hospital, Vizag in auto by

Narasimhulu.

     13)   The prosecution examined P.W.4 and his evidence is

that the offence took place in the month of December, 2005 at

about 8-00 p.m. in the thrashing floor of Jeeru Adaiah. By that

time he was at his house after completing his dinner. P.W.3 came

to him and informed that P.W.1 fell on the ground, when the

accused stabbed him with Vullikatti. Then, he went to the scene
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along with P.W.3. He found P.W.1 with injuries and also found

that intestine was exposed to outside. P.W.2 and he took P.W.1

in auto of one Neelapu Yellareddy to Appollo Hospital, Vizag.

Prior to that, P.W.1 was taken to the hospital of one Swaminaidu

at Tagarapuvalasa and on his advice, P.W.1 was taken to Vizag.

He was treated in the hospital for one or two months.

     14)   The prosecution examined P.W.5, a mediator, who

deposed that the police examined the scene of offence on

14.12.2005

at about 10-00 a.m. and seized one teak stick and

one bamboo stick and blood stained earth and controlled earth

under the cover of Ex.P.2 observation report. On 15.12.2005 at

10-00 a.m., the police called him again and he was taken to the

house of the accused and he was caught hold while he was hiding

in the house on the Atuku. The accused gave confessional

statement to the police and he concealed the crime weapon i.e.,

Vullikatti in cheeru (eves) and produced the same before the

police. Police seized the same under the cover of Ex.P.3 (only

admissible portion).

15) P.W.6 was the then Sub Inspector of Police,

Bhogapuram and his evidence is that on 14.12.2005 at 9-00

a.m., while he was present in the police station, P.W.2 came to

the police station and gave his statement, which is Ex.P.1. He

registered it as a case in Crime No.121 of 2005 under Section

307 of I.P.C. Ex.P.4 is F.I.R. He left the police station along with

his staff to the scene of offence which was situated at Jeerupeta

Village, a coconut tope. He observed the scene of offence under

Ex.P.5. He seized one Bamboo stick, one small teak stick, blood

stained earth and controlled earth under the cover of Ex.P.2

mediators report. He examined P.W.3, L.W.2, L.W.4, L.W.5,

P.W.4, L.W.7 and L.W.8 and recorded their statements. He left

the scene of offence and proceeded to Abhaya Hospital,

Visakhapatnam where injured was taken treatment. As he was

under surgery, he could not take the statement of him. On

15.12.2005 on reliable information, he along with mediators,

proceeded to Jeerupeta and arrested the accused under the cover

of a separate report. Basing on the confessional statement, he

seized one full hands shirt with blood stains, one cotton lungi and

one Vulikatti. Vulikatti was concealed on the eves (Pedaka) by the

accused. M.O.4 and M.O.5 are the sticks. After arresting the

accused, he sent him for remand on the same day. On

17.12.2005 he examined P.W.1 and recorded his statement. He

seized the blood stained clothes of the injured i.e., one T-shirt

and blood stained cotton lungin, towel. T-shirt was marked as

M.O.6, cotton lungi was marked as M.O.7 and towel was marked

as M.O.8. He got examined the same through RFSL report. After

completion of investigation, he filed charge sheet.

16) The prosecution examined P.W.7, the medical officer,

who treated the injured and he deposed that presently he is

working as MLC consultant, Abhaya Critical Care, Visakhapatnam.

On 14.12.2005 at 8-00 p.m., P.W.1 was brought by his brother

Appala Reddy. He examined him and found a stab injury of 3 cm.

length and ½ cm width with exposure of omentum (5 cm) with a

carpenting instrument (Vuli). Patient underwent laporatomy

exploration and on laporatomy exploration he found 8 cm

laceration of right anterior and posterior rectur sheith, right

rectur muscle with omentum prolase. The injury is grievous in

nature.

17) Smt. T.V. Sridevi, learned counsel for the appellant,

would contend that though the offence in question was happened

at about 8-30 p.m., during night, report could not be lodged till

the next day morning and even the police did not obtain any

statement or did not obtain any report from P.W.1, injured. On

the other hand, P.W.2, the brother of P.W.1, gave a statement to

the police. There must have been a report or statement recorded

from the injured which was suppressed by the investigating

officer. The prosecution did not examine Lakkoji Appa Rao. The

statement under Ex.P.1 was hit under Section 161 of Cr.P.C., as

the earlier report by P.W.1 was suppressed. The Court below just

believing the evidence of P.W.1 went on to convict the appellant.

The Court below should not have believed the recovery of M.O.1.

The ocular evidence and the medical evidence does not reconcile

with each other. The accused had never any intention to kill the

injured. The defence of the accused before the Court below was

that P.W.1 sustained injuries by fall after consumption of liquor.

Even if the allegations of the prosecution are believable for any

reason, it would attract only Section 326 of I.P.C., but not

Section 307 of I.P.C. The sentence imposed against the accused

for a term of eight years is excessive and harsh. She would

further contend that there was no probability for P.W.3 to witness

the occurrence and he was a chance witness. At any rate, the

judgment of conviction and sentence imposed against the

accused is not sustainable under law and further the allegations

would not prove the essential ingredients of Section 307 of I.P.C.,

as such, she seeks to exonerate the accused.

18) Sri Y. Jagadeeswara Rao, learned counsel,

representing the learned Public Prosecutor, would contend that

P.W.3 was an independent witness to the occurrence. His

presence was categorically proved by the prosecution. P.W.1 had

no reason to implicate the accused falsely. Even according to the

answers elicited from P.W.2, the accused and P.W.1 used to

consume alcohol together. Therefore, the motive set up by the

prosecution is further strengthened in cross examination of

P.W.1. M.O.1 weapon was a sharp edged and the accused had

knowledge or intention that if he attacked the injured with such

weapon, it is likely to cause the death of the injured. The Court

below rightly believed the case of the prosecution and held that

the evidence of P.W.1 has corroboration even from the medical

evidence. With the above said contentions, he would seek to

dismiss the appeal.

19) During the course of cross examination, P.W.1

testified that the thrashing floor of Adaiah is situated in

Bhogapuram Mandal at Dankada village. He got friendship with

the accused two or three years prior to the offence. The accused

and he himself used to meet once for two or three months for

consuming liquor contributed by both of them. He visited the

thrashing floor of Adaiah now and then to sleep. He regained

consciousness only four days after the incident. He informed the

doctor about the incident. He did not state before police that the

accused stabbed him with Vullikatti. He denied that the accused

abused him in filthy language and that he should not live. The

house of Lakkoji Appa Rao is at the distance of 150 yards from

the thrashing floor of Adaiah. P.W.3 was working under the Appa

Rao. He denied that he fell in intoxicated state and sustained

injuries and he gave false report.

20) Coming to the evidence of P.W.3, the direct witness

to the occurrence, he deposed in cross examination that for some

period he worked under Lakkoji Appa Rao. As Appa Rao went to

Vizag, he stopped working under him one year prior to the

alleged incident. Police came to the scene at about 1-00 p.m. on

the next day. He denied that he did not state before police that

the accused abused P.W.1 and that he would not live P.W.1 alive.

He did not go to the hospital with P.W.1. He denied that he,

P.W.2, P.W.1 and Appa Rao were friends and in drunken mood,

P.W.1 fell and sustained injuries.

21) P.W.4 is not a direct witness to the occurrence and he

is one of the brothers of P.W.1 and he testified that the presence

of P.W.1 with injuries at the scene. The evidence of P.W.1 has

corroboration from the evidence of P.W.3 insofar as attack

against P.W.1 by the accused. During the course of cross

examination, P.W.2 categorically explained that the distance

between Bhogapuram police station and Jeerupeta is 6 to 7

kilometers. He went to the police station on the next day morning

at about 9-00 a.m. along with one Jeeru Gurumurthy and he was

examined by the police at 1-00 p.m. He denied that he did not

state in Ex.P.1 that P.W.1 stabbed with Vullikatti.

22) It is to be noticed that it is a case where P.W.1 lost

consciousness after the incident and he even in cross examination

he stated that he regained consciousness only four days after the

incident and he informed the doctor about the incident. Apart

from this, there is evidence of P.W.6, the investigating officer,

that though he made effort to examine P.W.1, but, he was under

process of surgery, as such, he could only examine him on

17.12.2005. Hence, there was no probability or possibility for

P.W.1 either to give a statement to the police on the date of

occurrence or subsequent thereto. It is a case where P.W.1

received bleeding injuries on his abdomen and the immediate

need of P.W.2 was to provide necessary medical aid to P.W.1. So,

the act of P.W.2 in giving statement to police on the next day

cannot be viewed with any eye of suspicion.

23) Now, the defence of the accused before the Court

below was that P.W.1 in drunken state fell and received such

injuries. It is to be noticed that when P.W.7, the medical officer,

categorically testified about the nature of injury, nothing was

elicited from him that the injury received by P.W.1 could be

possible by fall. Apart from this, it is a case where the accused

elicited negative answers which goes against his defence in cross

examination from the mouth of P.W.1 to the effect that he and

the accused used to meet once for two or three months for

consumption of liquor. The case of the prosecution is that one

day prior to the offence, the accused provided alcohol to P.W.1

and on the date of offence the accused demanded P.W.1 to

provide alcohol for which P.W.1 expressed his inability and there

ensued to a quarrel and both of them indulged in picking out

sticks to attack each other which was said to be pacified by P.W.3

and others. Apart from the evidence of P.W.1, even the answers

elicited by the accused that he and P.W.1 used to meet with each

other for consumption of liquor being contributed by both of them

supported the case of the prosecution. So, the answers elicited

from P.W.1 during the course of cross examination further lends

an assurance to the case of the prosecution. The injury received

by P.W.1 cannot be attributed to a fall in drunken state. Hence,

absolutely, P.W.3 who is the independent witness has no reason

to depose false against the accused.

24) Absolutely, the accused did not elicit anything from

P.W.2 that whether during the night he lodged any report or

statement to police. The contention of the appellant that the

earlier report was suppressed by the prosecution cannot stands to

any reason. Therefore, it is very clear that the evidence of P.W.1

has corroboration from P.W.3 who was an independent witness to

the occurrence. The prosecution need not examine each and

every witness cited by the prosecution. Though the prosecution

did not examine Lakkoji Appa Rao from whose house the accused

picked out Vullikatti, it is not going to affect the case of the

prosecution in any way. It is also the contention of the appellant

that Lakkoji Appa Rao was not there in the village. It is very

difficult to accept such contention. The accused elicited form the

mouth of P.W.3 that he worked for some period under Lakkoji

Appa Rao previously and as Appa Rao went to Vizag, he stopped

working under him one year prior to the incident. It does not

mean that Lakkoji Appa Rao was not in the village on the date of

incident.

25) In the light of the above, the testimony of P.W.1 and

P.W.3 is quietly believable. Their evidence is consistent with each

other. The evidence of P.W.1 has corroboration from the evidence

of P.W.7, the medical officer, coupled with Ex.P.6. In my

considered view, the prosecution by adducing cogent evidence

proved the fact that on 13.12.2005 at 8-30 p.m., the accused

attacked P.W.1 with Vullikatti. Though the accused agitated

before P.W.1 that he did not state before police that he was

attacked with Vullikatti, but the fact remained is that merely

because the word Vullikatti was not used by P.W.1, it is not going

to affect his testimony. In my considered view, the prosecution

before the Court below proved the attack made by the accused

on P.W.1, which resulted into causing of grievous injury to him.

The oral evidence as well as the medical evidence is quietly

consistent.

26) Now, another aspect that has to be considered here is

as to whether the act that is alleged and proved by the

prosecution against the accused would attract essential

ingredients of Section 307 of I.P.C. It is to be noticed that it is

the specific evidence of P.W.1 that when the accused demanded

him to provide alcohol and when he refused to provide, the

accused slapped him and then he (P.W.1) took a stick into his

hand and the accused also took a stick and both of them were

ready to attack each other and then they were separated by

L.W.3 and L.W.4 and then the accused went into the house of

Lakkoji Appa Rao by stating that he should not live and brought

Vulli knife and attacked him. It is also testified by P.W.3. Insofar

as the word spoken by P.W.1 and P.W.3 that the accused

attacked P.W.1 stating that he shall not live, the accused was

able to elicit from the mouth of P.W.6, the investigating officer

that P.W.1 did not state before him that the accused stabbed him

by saying that he (P.W.1) should not live. Therefore, the evidence

of P.W.1 and P.W.3 that the accused made an attack on P.W.1

stating that P.W.1 shall not live or P.W.1 is to be killed is an

omission which amounts to a material contradiction (words

alleged to be used by the accused).

27) It is to be noticed that it is not the case of the

prosecution that the accused attacked multiple times on the

abdomen of P.W.1. On the other hand, even according to the

evidence of P.W.1, the accused made a single attack and P.W.1

received a single injury. The evidence on record would prove

undoubtedly that in a heat of passion when P.W.1 and accused

were ready to attack each other by armed with sticks and when

they were separated by L.W.3 and L.W.4, the accused went into

the house of Lakkoji Appa Rao and brought Vullikatti and made

an attack. Hence, the probabilities are such that the accused did

not utter any words while attacking P.W.1 that he wanted to kill

him. It is no doubt true that the injury caused by the accused to

P.W.1 was on the abdomen which is a vital part, but, what is

material to decide the charge under Section 307 of I.P.C. is

whether the accused did such an act with an intention or with

such knowledge that he would be guilty of murder, if he causes

death by such an act. It is to be noticed that according to the

evidence of P.W.7, he found a stab injury of 3 cm length and ½

cm width with exposure of omentum (5 cm). It may be a fact that

inner side of abdomen there was a laceration of 5 cm right

anterior and posterior rectur sheith, right rectur muscle with

omentum prolapse. But, the thing is that the width of the weapon

must have been less than ½ cm. So, it is not a big knife. It is not

a heavy cutting instrument but it can only be used for carpenting

work.

28) Having regard to the above, this Court is of the

considered view that it is very difficult to come to a conclusion

that the accused had knowledge that by such an act if he causes

death, he would be guilty of murder. Merely because P.W.1

received a grievous injury on account of the attack made by the

accused, it does not leads to automatic conclusion that the

accused made such an attack with an intention or with knowledge

that he would be guilty of murder, if he causes death of the

injured.

29) In the light of the above and as the evidence of P.W.1

that the accused attacked him by saying that he shall not live is

an omission, it is very difficult to say that the prosecution

established the charge under Section 307 of I.P.C. In my

considered view, the accused would have no intention to kill

P.W.1 or he would have no knowledge that he would be guilty of

murder, if he causes death of the injured by such a weapon. The

width of the piercing part of the weapon is less than ½ cm.

Under the circumstances, I am of the considered view that the

evidence on record would only attract the essential ingredients of

Section 326 of I.P.C. instead of Section 307 of I.P.C. Section 307

of I.P.C. contemplates that the prosecution should prove the

intention or knowledge to cause death. Section 326 of I.P.C.

provides causing of grievous hurt by means of any instrument for

shooting, stabbing or any instrument which used as a weapon of

offence which is likely to cause death. Therefore, what is criteria

under Section 326 of I.P.C. is that causing an injury with an

instrument which is likely to cause death. So, obviously, the

intention on the part of the accused to commit murder of P.W.1

or atleast the knowledge that he would be guilty of murder, if he

causes death by such an act are obviously missing from the

evidence let in coupled with the medical evidence.

30) Having regard to the above, I am of the considered

view that the case of the prosecution would squarely prove the

offence under Section 326 of I.P.C. against the accused, but, not

under Section 307 of I.P.C. Section 326 of I.P.C. is a minor

offence, if it is compared with Section 307 of I.P.C. The evidence

on record would prove categorically the offence under Section

326 of I.P.C. against the accused instead of the offence Section

307 of I.P.C. The learned Assistant Sessions Judge made a

finding that it is not the case of the prosecution that at a spur of

moment and due to grave and sudden provocation, the accused

attacked the injured. The learned Assistant Sessions Judge

overlooked the evidence on record which is to the effect that both

P.W.1 and accused took sticks with each other and were ready to

attack with each other and at timely intervention of P.W.3 and

others, they could not attack with sticks. Undoubtedly, the

incident in question was happened when the accused and P.W.1

were separated by P.W.3 and others. The cause for the incident

was a petty quarrel as P.W.1 did not oblige the request of the

accused to provide alcohol, as at previous night the accused

provided alcohol to P.W.1. Under the circumstances, it cannot be

held that the prosecution made out the offence under Section 307

of I.P.C. On the other hand, the evidence on record would prove

the offence under Section 326 of I.P.C. alone against the accused

beyond reasonable doubt.

31) In the light of the above, I am of the considered view

that looking into the fact that the offence in question was

happened at a spur of moment when both P.W.1 and accused

were trying to attack each other with sticks and having regard to

the above overall facts and circumstances, the sentence imposed

against the accused is to be modified under Section 326 of I.P.C.

appropriately.

32) In the result, the Criminal Appeal is allowed in part

modifying the sentence of imprisonment imposed by the learned

Assistant Sessions Judge, Parvatipuram at Vizianagaram against

the appellant (accused) from that of Section 307 of I.P.C. to

Section 326 of I.P.C. and sentencing the accused to suffer

rigorous imprisonment for four years and to pay fine of Rs.500/-

in default to suffer simple imprisonment for six months.

33) The Registry is directed to take steps immediately

under Section 388 Cr.P.C. to certify the judgment of this Court to

the trial Court on or before 11.07.2023 and on such certification,

the trial Court shall take necessary steps to carry out the

sentence imposed against the appellant (accused) and to report

compliance to this Court.

34) Registry is directed to send copy of the order along

with original record to the Court below on or before 14.07.2023.

Consequently, miscellaneous applications pending, if any,

shall stand closed.

________________________ JUSTICE A.V. RAVINDRA BABU Dt. 04.07.2023.

PGR

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

CRL. APPEAL NO.1707 OF 2009

Note:

Registry is directed to send copy of the order along with original record to the Court below on or before 14.07.2023.

Date: 04.07.2023

PGR