PUBLIC PROSECUTOR ANDHRA PRADESH Vs. BOLLAPALLI VEERAIAH ALIAS BUDDA VEERAIAH

JUDGEMENT

(1.) This is an appeal preferred by the State of Andhra Pradesh against the Judgment of the Additional Sessions Judge of Guntur in Sessions Case No. 30 of 1960. Accused 1 to 5 were charged under section 147 and 302 read with sections Stand 149 Indian Penal Code. The fifth accused was also charged under section 323,Indian Penal Gods, for causing hurt to P.W. 2. The learned Additional Sessions Judge acquitted the third accused. Pic held that accused 1, 2, 4 sod 5 were guilty under section 304, Part(2) read with section 34, Indian Penal Code. He also found that the fifth accnsed was guilty under section 323 Indian Penal Code. While sentencing the first accused to undergo rigorous imprisonment for four years, he sentenced accused 2, 4, and 5 each to two years rigorous imprisonment. So far as the fifth accused was concerned having convicted him under section 323, Indian penal Code, also he sentenced him to six months rigorous imprisonment, the sentences on him to run concurrently. The appeal is filed by the state of Andhra Pradesh contending that all the accused are punishable under section 302 read with sections 34 and 149, Indian Penal Code.

(2.) In order to appreciate the contention of the learned Public Prosecutor, it is necessary to set out a few relevant facts. Kotaiab, the deceased, was the watchman working in the field of P.W. 9. Pie was a resident of Rokatigantivari palem. The lands of P.W. 9, of which he was a watchman, were situate in Grandhisiri. The fodder stored in the fields was stolen long before the occurrence. Ten days prior to the occurrence, the first accused questioned the deceased as to whether he stated that all Grandhisiri people were thieves and the deceased repeated that statement. On 14th February, 1960 the deceased and hit nephews went to Voravakallu to attend a fair. According to the case for the prosecution, accused 1 to 5 me to Voravakallu with sticks in their hands and attacked the deceased. When P.W. 2 wanted to lift the deceased who had fallen down, the fifth accused beat P.W. 2 with the stick in his hand. He there, fore ran away from the place of occurrence to Rokatigantivaripalem and brought people to remove Kotaiab Meanwhile, the son of Kotaiab came on the scene and he was also beaten by accused 2. He also ran away from the scene of offence. He met a few people on the tank-bund and along with them here turned to the place where his father had fallen down. They r moved Kotaiah to the house of a Vodde, who was examined as P.W. 5. It is alleged that Kotaiah mentioned the names of the accused as having beaten him. P.W. 2 returned with people from his village Rokatigantivaripalem and Kotaiah wat removed to their village. It is the case of the prosecution that even in that village, he mentioned the names of the persons who attacked him. During the night he was complaining of great pain and so he was taken therefrom to the hospital at Atchampet. On the way he died. Both P.W. 2 and P.W. 1 proceeded with the dead body to the police station and P.W. 2 made a complaint on 15th February, 1960 at 5 A.M. to P.W. 15. The First Information Report was marked as Exhibit P-1.

(3.) As to the manner of attack and the offence committed by the first accused there is the oral evidence of the nephew examined as P.W. 2 and of another wetness P.W. 3. So far as the son examined as P.W. 1 is concerned, he was not present at the time of the attack. According to him, when he came to the scene of offence, he found all the five accused present. The oral declarations made by Kotaiah in the house of P.W. 5 as also in his house after he was taken to Rokatigantivaripalem are relied on to implicate all the five accused. The question that arises for consideration in the appeal is as to whether the prosecution has proved that all the five accused had proceeded to Grandhisiri with the common intention of committing the offence or whether the offence was committed in prosecution of the common object of the unlawful assembly as provided in section 149, Indian penal Code,. Having carefully persued the evidence were, inclined to take the view that neither the common intention under section 34, Indian penal Code, nor the common object specified in section 149, Indian Penal Code, is proved.