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Angadi Chennaiah (A.1) and ors. Vs. State of A.P. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1985CriLJ1366
AppellantAngadi Chennaiah (A.1) and ors.
RespondentState of A.P.
Excerpt:
..... of the fee is expended or the purpose for which it is levied, it would be justified. expressum facit cessare tacitum sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] meaning when there is express mention of certain things, then anything not mentioned is excluded. - it is alleged in the charge-sheet that on 8-12-1979, all these accused formed into an unlawful assembly, armed with deadly weapons like sticks, spears, axes, etc. the offence made up of parts is well stated by illustration (a) to section 71, i. such conviction was termed as bad. since the court sought to convict the accused in that case under section 332 read with section 149. his lordship termed it as bad under law, since sections 146 and 149, ipc speak of common object and unlawful assembly. it is..........the charge-sheet that on 8-12-1979, all these accused formed into an unlawful assembly, armed with deadly weapons like sticks, spears, axes, etc., and attacked p.w.i and others. the case was registered as crime no. 262/79 p. s. nagarampalem. the learned magistrate, i.e., the additional judicial magistrate of ii class, guntur, committed the accused to take the trial under various sections of the code to the court of the session in his order dt. 30-6-1980 in p.r.c. no. 9/1980. the learned principal assistant sessions judge tried the accused for various offences in s.c. no. 100/80 and found the accused 1 to 5, a9 and a10 guilty for the offences punishable under section 148, i.p.c. beyond all reasonable doubt and while convicting them thereunder, sentenced each one of them to suffer r.i. for.....
Judgment:
ORDER

Lakshminarayana Reddy, J.

1. The revision petition is directed against the conviction and sentence as confirmed by the Additional Sessions Judge, Guntur, in Criminal Appeal No. 301/80 dt. 21-4-1982 modifying the judgment of the Principal Assistant Sessions Judge, Guntur, in S.C. No. 100/80. The revision petitioners are A1, A3, A8 and A9. The facts that led to this revision petition are as follows:

S.H.O., Nagarampalem, filed a charge-sheet against these appellants and 14 others, for offences punishable under Sections 147, 148, 307, 324, 325, etc. It is alleged in the charge-sheet that on 8-12-1979, all these accused formed into an unlawful assembly, armed with deadly weapons like sticks, spears, axes, etc., and attacked P.W.I and others. The case was registered as Crime No. 262/79 P. S. Nagarampalem. The learned Magistrate, i.e., the Additional Judicial Magistrate of II Class, Guntur, committed the accused to take the trial under various sections of the Code to the Court of the Session in his order dt. 30-6-1980 in P.R.C. No. 9/1980. The learned Principal Assistant Sessions Judge tried the accused for various offences in S.C. No. 100/80 and found the accused 1 to 5, A9 and A10 guilty for the offences punishable under Section 148, I.P.C. beyond all reasonable doubt and while convicting them thereunder, sentenced each one of them to suffer R.I. for one year. He further found Al guilty for the offence under Section 324, I.P.C. on three counts causing injuries with a deadly weapon (axe) on the persons of P. Ws. 1,3 and 4. While convicting thereunder the Court sentenced him to suffer R.I. for two years and to pay a fine of Rs. 50/- in default, to suffer R.I. for one month for the offence under Section 324 on each count. He found A3 further guilty of the offence under Section 324, I.P.C. on three counts for causing injuries to P.Ws. 1, 2 and 3 and similarly sentenced him as in the case of Al. He found A9 also guilty of the offence under Section 324, IPC on two counts for causing injuries on the persons of P. Ws.2 and 3 and sentenced him to undergo two years' R.I. and to pay a fine of Rs. 50/- under each count. He found A5 guilty under Section 324, IPC on two counts for causing injuries to P.Ws.1 and 2 and while convicting him thereunder, sentenced him to undergo imprisonment for - two years on each count and to pay a fine of Rs. 50A and in default, to suffer R.I. for one month. He also found similarly some other accused guilty of various offences on various counts and sentenced each one of them to various periods of imprisonment and fines. He, however, acquitted A6, A7, and A15.

2. The accused who were found guilty and convicted, i.e., A1, A2, A3, A4, A5, A9, A10 and All preferred appeals against their convictions and sentences to the Sessions Judge at Guntur. The learned Additional Sessions Judge heard the matter in Criminal Appeal No. 301/80. The learned Sessions Judge in the appellate Court acquitted A4 and All of all the charges. The convictions of Al, A2, A5 and A10 under Section 324, IPC for voluntarily causing injuries to P.W.I by a deadly weapon was confirmed. However, the sentence of R.I.' for two years imposed by the Court of first instance on each count was reduced to four months R.I., while maintaining the fine imposed. The convictions of A2, A4, A5 and A9 under Section 324, IPC for causing injuries to. P. W.2 by means of a deadly weapon were also confirmed but the sentence of two years R.I. awarded by the trial Court was reduced to four months R.I. while maintaining the fine. The conviction of Al, A3, and A9 under Section 324, IPC for causing injuries P.W.3 by means of a deadly weapon was confirmed. But, the sentence of two years' R.I. awarded by the lower Court was altered to four months R.I. while maintaining the fine. The convictions of Al to A3, A5, A9 and A10 under Section 148, I.P.C. were confirmed and the sentence of one year R.I. imposed by the trial court was altered to four months R.I. The rest of the charges on which the trial court found these accused guilty were set aside.

3. In this Revision Petition, preferred by Al, A3, A5 and A9 only the orders passed by the lower appellate court are questioned.

4. The point that arises for consideration in this revision petition is whether the convictions and sentences against these revision petitioners suffers from incorrectness, impropriety or illegality

5. The learned Counsel for the revision petitioners urged that the- lower Court erred in imposing the sentences both under Section 148, I.P.C. and also under Section 324, I.P.C. Such sentence under both the sections of law is opposed to Section 71, IPC. Let us see Section 71, IPC The same is as follows:

Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such offences, unless it be so expressly provided. Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or

where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, % different offence, the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences.

Here, the allegation against the accused is, these four revision petitioners and many others, numbering more than 5, armed with deadly weapons, caused injuries on the persons of P.Ws. 1, 2, 3, and some others. The offence under Section 148 is rioting, armed with deadly weapons. Rioting is defined as follows:

146. Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.

These four revision petitioners are found to be guilty under Section 148, I.P.C. by the two lower Courts. That means these four revision petitioners, are members of the unlawful assembly, which assembly used force. If one of them attacks individual members and causes injuries, surely that constitutes another offence, which is distinct and separate from the offence, punishable under Section 148, I.P.C. In other words, the offence of rioting with deadly weapons and the offence of causing simple injuries with deadly weapons on individual persons punishable under Section 324, I.P.C. cannot be said to be an offence made up of parts of a single offence. The offence made up of parts is well stated by Illustration (a) to Section 71, I.P.C. The illustration is as follows:

A gives fifty strokes with a stick. Here A may have committed the offence of voluntarily causing hurt to Z by the whole bearing and also by each of the blows which make up the whole bearing. If A were liable to punishment for every blow, he might be imprisoned for fifty years, one for each blow. But he is liable only to one punishment for the whole beating.

6. Thus, the illustration makes it clear that where only an offence is made up of many parts, and then only, the offender shall not be punished for more than one such offence. When the offences are separate and distinct and do not constitute parts of one offence, the accused can be convicted separately for each one of the offences. Therefore, in my opinion, the fact of this case do not attract Section 71, I.P.C. However, the learned Counsel brought to my notice a decision reported In Re Boya Hussainappa, 1958 Andh LT 109, in which Justice Basi Reddy observed that the imposition of two separate sentences, one for rioting and the other for a subtantive offence, read with Section 149, I.P.C. is illegal, as it offends the provisions of Section 71, IPC. There the accused were sought to be convicted for the offence under Section 332 read with Section 149, IPC. The accused there were sought to be convicted once for the offence under Section 147 and again they were sough't to be convicted for the act of one member with the aid of Section 149. Which again speaks for the common object of the assembly. Such conviction was termed as bad. If any member of that assembly in that case (above cited one) is sought to be sentenced under Section 332, then that would have been a correct sentence. Since the Court sought to convict the accused in that case under Section 332 read with Section 149. His Lordship termed it as bad under law, since Sections 146 and 149, IPC speak of common object and unlawful assembly. Therefore the facts of this case differ from the facts with which Basi Reddy, J. was dealing in the above quoted decision.

7. The learned Counsel also cited some other decisions of some other High Courts which can be distinguished as in the case of the above cited decision. Therefore, in my opinion, this argument of the learned Counsel for the revision petitioner that the sentence both under Sections 148 and 324, I.P.C. is opposed to Section 71, I.P.C. is not acceptable.

8. The learned Counsel then submitted that the prosecution story must be a false one, since, even though it is alleged that the accused were armed with deadly weapons, all the injuries received by the various complainants are only lacerated injuries, contusions and abrasions and there are no incised injuries. This is not correct For instance P.W.I is having head injuries on his person said to have been caused by an axe by Al. Even though the Medical Officer, P.W.8, described this injury on the head as lacerated, at the same time, he deposed that the same can be caused by an axe. It is common knowledge that when axe is used on a hard surface like the head, it is possible to cause laceration rather than a cut injury. Again, sometimes, if a stick is used on the head, there is the possibility of causing an incised injury. Therefore, simply because no incised injuries are found on the persons of P.Ws. 1, 2, and 3, etc., it cannot be said that the accused have not used axes, etc. Therefore this argument has also got no substance.

9. It is then argued by the learned Counsel for the petitioners that the weapons used by the accused were not recovered and they were not produced before the Court. That in the absence of the weapons, the two lower Courts are wrong in inferring that the weapons used are deadly weapons. PWs 1, 2 and 3 have deposed specifically that Al used axe. Axe is a deadly weapon. It is also there in the evidence of PWs 1,2 and 3 that A3 used a stick having a spear head. Therefore, it cannot be said that the spear is not a deadly weapon. AS and A9 used iron rods. It cannot be said that iron rods are not deadly weapons in the sense that they could not cause death when aimed at the head. Therefore, when the two lower Courts found that the weapons used by Al to A3, A4 and A9 are deadly weapons, being axes, spears and iron rods, the conclusions of the two lower Courts that they are deadly weapons cannot be said to be wrong.

10. It is then argued by the learned Counsel for the petitioner that A6, A7, and A15 have got injuries on their persons and the prosecution has not explained those injuries. Therefore, the prosecution story must be false. It is true, there is evidence that A6, A7 and A15 have sustained some injuries. But, when as many as 18 persons attack a number of people of the opposite party and when it is a rioting simple injuries on their own persons at the hands of their own people cannot be ruled out. Again, even if one of persons that was attacked turns round and inflicts injuries, it is not possible for the prosecution to explain which person among the victims has caused those injuries to the accused. Therefore, simply because A6, A7 and A15 were found to have sustained some simple injuries, the prosecution case cannot be thrown out on the ground that the injuries on these accused has not been explained by the prosecution.

11. Lastly, the learned Counsel for the petitioners submitted that the sentence of four months R.I. and a fine of Rs. 50/- on each count is excessive. When the accused could use axes, spears and iron rods, at dead of night and attack people, the sentence is not at all excessive. On the other hand, the lower appellate Court 'has wrongly reduced the sentence, and the sentence of four months R.I. and a fine of Rs. 50/- on each count is rather a lenient sentence for the offence that was committed by the accused. For all these reasons, I do not think that the judgment of the lower Court, as far as these revision petitioners are concerned, suffers from incorrectness, impropriety or illegality. In the result, the revision fails and the same is dismissed.


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