Arijit Pasayat, J. - (1.) Leave granted.
(2.) Challenge in this appeal is to the judgment of the Division Bench of the Andhra Pradesh High Court disposing of two criminal appeals i.e. Criminal Appeal Nos. 1114 and 1118 of 2004. By the impugned judgment Criminal Appeal No. 1114 of 2004 filed by Ganpathi Satya Prakash (A3) was allowed. But Criminal Appeal No. 1118 of 2004 filed by Kotikalapudi Suresh (A2) was allowed while the appeal filed by the present A1 was dismissed. It is to be noted that the present appellant and Kotikalapudi Suresh (A2) were found guilty under Section 302 of the Indian Penal Code, 1860 (in short Rs. IPC) while Ganpathi Satya Prakash (A3) was found guilty for offence punishable under Section 302 read with Section 34 IPC. The present appellant was also found guilty for offence punishable under Section 307 IPC. Appellant was sentenced to undergo RI for life and to pay a fine of Rs. 500/- for the first offence and RI for five years and fine of Rs. 2000/- with default stipulation for the second offence.
(3.) Background facts in a nutshell are as follows: Kancherlapalli Ravi Kiran (hereinafter referred to as the Rs. deceased ) was doing finance business. A1 borrowed an amount of Rs. 30,000/- from the deceased and executed a promissory note scribed by Pasupuleti Chennakesavulu (P. W.8). On 5.5.2001 the deceased asked A1 to repay the said amount due to him. On denial of Al to repay the same, the deceased allegedly slapped Al and thereupon, Al threatened the deceased that he would see his end. On the next day i.e. on 6.5.2001 at about 6.30 P.M. the deceased alongwith P.W. 1 came to old Bus Stand in Papatla on Suzuki Motorcycle. Then A 1 stopped the motorcycle and called deceased and P.W.1. The deceased got down from the motorcycle and went to A1 and thereupon quarrel ensued. P.W.1 rushed towards A1 and noticed Al and A2 armed with knives and another person was also with them. P.W. 1 identified the other person as A3. According to P.W. 1, Al and A2 attempted to attack the deceased with knives and therefore he went in rescue of him and thereupon A1 poked him with a knife on the right side of abdomen, and A3 kicked him on his stomach and so he fell down. Later, A1 poked the deceased with knife on the left side of chest and ribs and A2 poked the deceased on the top of right side hip. In the meanwhile, P.W.2-Kokkirala Naga Satish reached the scene and raised cries. His cries drew the attention of the passers by and thereby the scene stormed with strong gathering. The accused took to his heels towards Bheemavaripalem Road, P.W.2 informed the incident to his father over phone. P.W.7-Kancherlapalli Kishore Kumar, a relative of P.W.2, reached the scene and shifted the deceased and P.W.1 to Government Hospital, Bapatla for treatment. The Doctor examined the deceased and declared him dead. P.W.16-Dr.Y.Vaijayanthi, CAS, Government Hospital, Bapatla examined P.W.1 medically and found a clean cut stab injury of size 3 1/4 cm s long, 1 cm wide and 7 depth, 2.5 cms below and 8 cms right of umbilicus on abdomen. After giving first aid to P.W. 1, the doctor referred him to Government Hospital, Guntur, for further treatment. She issued Ex.P.12 certificate opining that the injuries received by P.W. 1 are grievous in nature. Ex. P.19 is the wound certified issued by her. A requisition was sent to JFCM, Bapatla to record the dying declaration of P.W. 1. P.W. 12 - M.Babu Rao, JFCM, Bapatla received the requisition from the Government Hospital on 6.5.2001 at about 8.50 P.M. to record the dying declaration of P.W.1. He proceeded to Government Hospital, Bapatla, and commenced recording of the dying declaration of P. W.1 at 9 P.M. and concluded the same at 9.20 P.M. Ex.P.13 is the dying declaration recorded by him. P.W.14 M.Dayanandam, ASI of Bapatla Town Police Station received death intimation as well as intimation of the admission of P.W.1 in the hospital. Ex. P.15 and P-16 are the intimations received by him. He rushed to Government Hospital, Bapatla, recorded the statement of P.W.1 and registered a case in Cr. No. 50/2001 under Sections 307 and 302 r/w 34 IPC and issued Ex.P-17 FIR. P.W.15 received the copy of FIR and took up investigation. He examined P.W.1 and recorded his statement under Section 161 of the Code of Criminal Procedure, 1973 (in short Rs. Cr.P.C). He observed the scene on 3.5.2001 at about 3 A.M. and prepared Ex.P.6 scene of offence panchanama. He examined PWs.2, 6 and 7 and one Kancharlapalli Naresh at the Government Hospital, Papatla and recorded their statements. He conducted inquest on the dead body of the deceased on 7.5.2001 at 8 A.M. The opinion arrived by the panchas, on hearing the statements of the witnesses examined during the inquest, came to be incorporated at Col. No. 15 of the Inquest Report. Ex.P.7 is the inquest report. P.W. 17 G. Penchalanaidu, Inspector of Police, Bapatla, took up investigation and effected arrest of Al and A2 and recovered Mos. l and 2 in pursuance of their disclosure statements. Ex.P.8 and P.9 are the admissible portions in their confessional statements. He effected the arrest of A3 on 19.5.2001 at 10.30 A.M. at the footbridge of Railway Station, Bapatla and sent him for remand. On requisition, P.W. 13 conducted test identification parade on 16.6.2001. In the test identification parade P.Ws. 1 to 3 identified A1 to A3 as the assailants of the deceased. After completing investigation, a charge sheet came to be submitted before the II Additional Munsif Magistrate, Bapatla. The learned Magistrate committed the case to the Sessions Division, Guntur as the offence under Section 302 and. 307 IPC are exclusively triable by the Court of Sessions. The learned Sessions Judge made over the same to II Additional Sessions Judge, Guntur for trial in accordance with law. The learned II Additional Sessions Judge, Guntur, on hearing the prosecution and the accused, framed the following charges: 1) Charge No. 1: Against A1 for the offence under Section 307 IPC; 2) Charge No. 2: Against A1 and A2 for the offence Under Section 302 IPC; 3) Charge No. 3: Against A3 for the offence under Section 302 r/w 34 IPC. He read over and explained the charges to the accused, for which the accused pleaded not guilty and claimed to be tried. To bring home the guilt of the accused for the offences with which they stood charged, the prosecution examined P.Ws.l to 17, marked Exs. P.1 to P.20 and exhibited Mos. 1 to 8. The learned Additional Sessions Judge, on appreciation of the evidence brought on record and on hearing the prosecution and the accused, found the accused guilty for the offences with which they stood charged and convicted them accordingly and sentenced them.;