Sec.307 and Ses.452 I.P.C.- "Defined what is an attempt to murder " - "a act which cause death if done , but left with injury or no injury on the body on prevention amounts to an Attempt to murder "- strangulation with telephone wire is enough to say that it is an attempt to murder - no fracture and dislocation of thyroid bone is necessary - trespass in to the office to commit body injuries amounts to trespass in to house - Apex court held that lower court correctly punished the accused where as High court committed wrong and as such , Apex court set aside the order of high court =
The High Court in appeal, referred to the deposition of P.W. 1
(Pasupuleti Siva Ramakrishna Rao) where he had honestly admitted that
accused did not come there armed with any weapon.
The Appellate Court
observed that the injuries were not only simple but were trivial.
As
regards Injury No. 5, it observed that though the Medical Officer
stated that the injury was dangerous to life, it is not clear as to how
the witness stated so, meaning thereby that there was no explanation
for the medical opinion.
Even though the High Court noticed that this
injury is a ligature mark of 34 cm x 0.5 cm size around the neck.
The
High Court accepted that the accused tied a telephone wire around the
neck of P.W. 1 (Pasupuleti Siva Ramakrishna Rao) and pulled it from
both sides but observed that this act may not actually amount to being
dangerous.
It was of the opinion that if a knife is used and only a
grazing injury is caused but no actual stabbing is done on any vital
part of the body, it cannot be said that the injury is dangerous.
Further observing that no intention could be attributed to the accused
to cause the death of P.W. 1 (Pasupuleti Siva Ramakrishna Rao) since
the accused had not come to the scene with dangerous weapon or caused
injuries on the vital part of the body, the High Court modified the
conviction under Section 307 IPC read with Section 34 IPC to Section
324 IPC.
12. As regards the charge under Section 452 IPC, the High Court
observed that the incident occurred when P.W. 1 (Pasupuleti Siva
Ramakrishna Rao) was in the Lorry Workers Union Office and not at any
private place and hence ipso facto set aside the conviction and
sentence under Section 452 IPC read with Section 34 IPC. =
Sec. 307 I.P.C. -Attempt to murder =
It is not possible to accept this contention in the
circumstances of the case that the act of strangulating a person by the
throat by a telephone wire and pulling it from both sides, which is
proved here, does not amount to the commission of the offence of
attempt to commit murder under Section 307 IPC.
The first part makes
any act committed with the intention or knowledge that it would amount
to murder if the act caused death punishable with imprisonment up to
ten years.
The second part makes such an act punishable with
imprisonment for life if hurt is caused thereby.
Thus even if the act
does not cause any injury it is punishable with imprisonment up to 10
years. If it does cause an injury and therefore hurt, it is punishable
with imprisonment for life.
There is no merit in the contention that the statement of
Medical Officer that there is no danger to life unless there is
dislocation or rupture of the thyroid bone due to strangulation means
that the accused did not intend, or have the knowledge, that their act
would cause death. The circumstances of this case clearly attract the
second part of this Section since the act resulted in injury No.5 which
is a ligature mark of 34 cm x 0.5 cm. It must be noted that Section 307
IPC provides for imprisonment for life if the act causes ‘hurt’. It
does not require that the hurt should be grievous or of any particular
degree. The intention to cause death is clearly attributable to the
accused since the victim was strangulated after throwing a telephone
wire around his neck and telling him he should die.
Sec .452 IPC -Trespass into house/private place to commit an offence“452. House-trespass after preparation for hurt, assault or
wrongful restraint. =
There is no doubt that the trespass was into a house and that
the appellant entered the office having prepared to assault the victim
and in any case for putting him in fear of hurt or of assault. There
is nothing in Section 452 IPC to suggest that the use to which the
house is put makes any difference. It is not the requirement of
Section 452 IPC that for a trespass to be an offence the house must be
a private place and not an office. The law protects any house from
trespass, vide Section 448 IPC and further protects persons within the
house from being assaulted or even put in fear of hurt or wrongful
restraint within their own house.
20. We thus find that the accused were not entitled to be acquitted
for the offences under Section 452 IPC read with Section 34 IPC.
21. We accordingly set aside the judgment of the High Court and
restore the Judgment of the Trial Court dated 31st July, 2003 passed
by the learned Assistant Sessions Judge, Bhimavaram in Sessions Case
No. 234 of 1999.
The respondent Nos. 2 [A-1-Chintha Srinivasa Rao] and
3 [A-2-Chintha Krishna] are sentenced to undergo rigorous
imprisonment for a period of seven years and to pay a fine of Rs.
100/- each, in default to suffer simple imprisonment for a period of
three months each for the offence under Section 452 with Section 34
IPC.
The respondent Nos. 2 [A-1-Chintha Srinivasa Rao] and 3 [A-2-
Chintha Krishna] are also sentenced to undergo rigorous imprisonment
for ten years and to pay a fine of Rs. 100/- each, in default simple
imprisonment for a period of three month each for the offence under
Section 307 read with Section 34 IPC. Both the sentences shall run
concurrently. Sentence already undergone, if any, shall be set off.
22. Accordingly this appeal is allowed.
The respondent Nos. 2 [A-1-
Chintha Srinivasa Rao] and 3 [A-2-Chintha Krishna] are directed to
surrender before Judicial Magistrate/Superintendent of Police concerned
forthwith. In case, they failed to do so within one month, steps be
taken, in accordance with law, to apprehend them.
2014(Feb.Part) judis.nic.in/supremecourt/filename=41242
H.L. DATTU, S.A. BOBDE
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 466 OF 2014
[Arising out of SLP (Crl.) No. 7044 of 2007]
PASUPULETI SIVA RAMAKRISHNA RAO …. APPELLANT
VERSUS
STATE OF ANDHRA PRADESH & ORS. …. RESPONDENTS
JUDGMENT
S. A. BOBDE, J.
1. Leave granted.
2. The appellant/defacto complainant has filed this appeal against
the judgment dated 1st February, 2007 passed by the learned Single
Judge of the High Court of Judicature at Andhra Pradesh.
The High
Court allowed the appeal in part, and acquitted the accused for the
offences under Section 452 read with Section 34 of the Indian Penal
Code [hereinafter referred to as “IPC”].
The High Court further
modified the conviction and sentence under Section 307 read with
Section 34 IPC to one -under Section 324 IPC and accordingly reduced
the sentence of 10 years to rigorous imprisonment for two months each
and also to fine of Rs. 2,000/- each, in default to suffer simple
imprisonment for a period of six months. Further, an amount of Rs.
4,000/- is directed to be paid by each of the accused collectively as
compensation to P.W. 1 (Pasupuleti Siva Ramakrishna Rao) – the victim.
Earlier, the Trial Court convicted the accused as follows:
A-1 to A-4 under Section 452 read with Section 34 IPC for rigorous
imprisonment for 7 years and fine of Rs. 100/- each, in default, to
suffer simple imprisonment for a period of 3 months each and under
Section 307 read with Section 34 IPC for rigorous imprisonment for 10
years and fine of Rs. 100/- each, in default, to suffer simple
imprisonment for a period of 3 months each.
Aggrieved by the Judgment passed by the High Court, the present appeal
is filed.
3. The prosecution case is that the victim P.W. 1 (Pasupuleti Siva
Ramakrishna Rao) was the President of Bhimavaram Taluk Lorry Workers
Union. A-1 - Chintha Srinivasa Rao @ Bandi Srinu and A-2 - Chintha
Krishna @ Bandi are brothers. A-4 -Chintha Lakshmana Rao is their
cousin. A-3 -Addla -Umamaheswara Rao is the close associate of A-1, A-
2 and A-4.
They are all residents of Bhimavaram. About a fortnight
prior to the date of incident – 20.04.1998, the victim P.W. 1
(Pasupuleti Siva Ramakrishna Rao) and some other Lorry Workers
collected Rs. 10,000/- as donations to perform the marriage of the
daughter of a poor lorry worker. That incensed the accused who
believed that P.W. 1 (Pasupuleti Siva Ramakrishna Rao) ought not to
have collected donations from their locality.
On 20.04.1998 at about
8.00 pm when P.W. 1 (Pasupuleti Siva Ramakrishna Rao) was in the Lorry
Workers Union Office near Anakoderu Canal in Undi Road, Bhimavaram, the
accused armed with deadly weapons entered the office, abused P.W. 1
(Pasupuleti Siva Ramakrishna Rao) in filthy language and threatened him
with death because he had collected donations from their area. They
attacked him. A-1 - Chintha Srinivasa Rao hit him on his head with the
cool drink bottle causing a grievous injury and instigated other
accused to tie a telephone wire around his neck to kill him. He along
with A-2 - Chintha Krishna and A-3 - Addla Umamaheswara Rao tied the
telephone wire around the neck of P.W. 1 (Pasupuleti Siva Ramakrishna
Rao) and pulled it from both sides to strangulate him with the
intention to kill him. A-4 - Chintha Lakshmana Rao beat him on his
right cheek with an iron rod. A-2 - Chintha Krishna beat him on the
forehead and A-3 - Addla Umamaheswara Rao and A-4 - Chintha Lakshmana
Rao beat him on the left eye and on the cheek. On making a hue and
cry, P.W. 1 (Pasupuleti Siva Ramakrishna Rao) was rescued by others,
who were present.
On a complaint, Crime No. 85/98 under Sections 307
and 452 IPC read with Section 34 IPC was registered, investigated and a
charge sheet was filed against all the accused. Charges were framed
and read over to the accused. They did not plead guilty.
4. P.Ws. 1 to 11 were examined and Exhibits P1 to P17 were marked
apart from M.Os. 1 to 5 on behalf of the prosecution. No oral
evidence was adduced on behalf of the accused.
5. The learned trial Judge convicted and sentenced the accused as
indicated above.
6. P.W. 3 (Kotipalli Srinivas) and P.W. 5 (Sunkara Sreenivasa Rao)
eye witnesses were declared hostile. P.W. 7 (Marri Sambhasiva) is the
circumstantial witness. P.W. 8 (Dirisala Murali) is the photographer.
P.W. 9 (Grandhi Sree Rama Murthy) is the panch witness.
7. P.W. 10 (Dr. B. Swarajya Lakshmi, C.A.S.) is the medical
officer, who examined P.W. 1 (Pasupuleti Siva Ramakrishna Rao) and
found the following injuries:
-
“1. Irregular bleeding lacerated injury of 3 cm x ¼ cm x ¼ cm size
present on the left parietal region of the scalp.
2. A contusion of 3 cm x size present lateral to the left eye with
overlying abrasion of ¼ cm size red in colour.
3. A contusion of 2 cm x 1 cm size present on the left eye upper
eye lid.
4. A contusion of 4 cm with abrasion of ¼ cm size present lateral
on the right side of the fore head.
5. Ligature mark of 34 cm x 0.5 cm size present below the thyroid
cartilage on the front, right side and left side of the neck, red
in colour.
6. A contusion of 2 cm x 1 cm size present on the right temple.
7. A contusion of 2 cm x 2 cm size present on the right cheek.
8. An oblique abrasion of 10 cm x 5 cm size present on the ventral
aspect of the left arm, red in colour.”
8. The Medical Officer [MO] opined that Injury No. 5 endangered the
life of P.W. 1 (Pasupuleti Siva Ramakrishna Rao). That the other
injuries are simple in nature and could have been caused as alleged.
9. P.W. 1 (Pasupuleti Siva Ramakrishna Rao) deposed that he
collected donations for performing the marriage of the daughter of
Pasupuleti Satyanarayan, a driver and a poor man. The accused
questioned and threatened him about the collection of contribution from
their territory and warned him that they would take away his life. On
20.04.1998 at about 8.00 PM when he was in the Lorry Workers Union
Office, the accused trespassed into the Union Office and abused him.
They told him that he cannot become a leader of their territory and
collect donations and they would not leave the Office unless they beat
him. A-1 - Chintha Srinivasa Rao beat him on his head with a cool
drink (Thums up) bottle and said he should die. He directed others to
tie a telephone wire around his neck therefore A-2 - Chintha Krishna
beat him on the forehead and A-3 - Addla Umamaheswara Rao tied a
telephone wire around his neck and pulled wire. Then A-4 - Chintha
Lakshmana Rao beat him with the rod on his right cheek along with
abuses. A-2 - Chintha Krishna also beat him with the rod on his
forehead and A-3 - Addla Umamaheswara Rao and A-4 - Chintha Lakshmana
Rao beat him on the upper side of his eyebrow and his cheek. He named
others who were present and intervened to rescue him stating that but
for that he would have been killed. His shirt was stained with his
blood. They left behind the broken Thums-up bottle, telephone wire and
iron rod. He was hospitalized for about 20 days. In cross examination
his version was not shaken. He accepted that the accused were not
armed with any weapon and said that the Thums-up bottle broke on his
head, because of the impact. The deposition of other witnesses support
the version of the injured witness - P.W. 1 (Pasupuleti Siva
Ramakrishna Rao). We have not referred to the depositions of
witnesses who have been declared hostile since such declaration is not
of much consequences in this case. The other depositions are in tune
with the deposition of PW1, the injured witness.
10. The Trial Court correctly appreciated the evidence and rejected
the argument that the other witnesses were not reliable because they
were interested witnesses. As regards charge under Section 34 IPC, the
Trial Court relied on the settled position in law that it is not
necessary that there should be a clear positive evidence about the
meeting of mind before the occurrence and that if there are more than
one accused a common intention to kill can be inferred from the
circumstances of the case. The prosecution need not prove the overt act
of the accused. As regards the charge under Section 452 IPC the Trial
Court held that there was clear intention of accused here and that it
was clearly established that the accused went to the office of P.W. 1
(Pasupuleti Siva Ramakrishna Rao) in a car and the other circumstances
clearly establish that there was preparation for committing the
offence. As noticed earlier, the Trial Court convicted and sentenced
accused under Section 452 IPC for 7 years and under Section 307 IPC for
10 years read with Section 34 IPC.
11. The High Court in appeal, referred to the deposition of P.W. 1
(Pasupuleti Siva Ramakrishna Rao) where he had honestly admitted that
accused did not come there armed with any weapon. The Appellate Court
observed that the injuries were not only simple but were trivial.
As
regards Injury No. 5, it observed that though the Medical Officer
stated that the injury was dangerous to life, it is not clear as to how
the witness stated so, meaning thereby that there was no explanation
for the medical opinion.
Even though the High Court noticed that this
injury is a ligature mark of 34 cm x 0.5 cm size around the neck.
The
High Court accepted that the accused tied a telephone wire around the
neck of P.W. 1 (Pasupuleti Siva Ramakrishna Rao) and pulled it from
both sides but observed that this act may not actually amount to being
dangerous.
It was of the opinion that if a knife is used and only a
grazing injury is caused but no actual stabbing is done on any vital
part of the body, it cannot be said that the injury is dangerous.
Further observing that no intention could be attributed to the accused
to cause the death of P.W. 1 (Pasupuleti Siva Ramakrishna Rao) since
the accused had not come to the scene with dangerous weapon or caused
injuries on the vital part of the body, the High Court modified the
conviction under Section 307 IPC read with Section 34 IPC to Section
324 IPC.
12. As regards the charge under Section 452 IPC, the High Court
observed that the incident occurred when P.W. 1 (Pasupuleti Siva
Ramakrishna Rao) was in the Lorry Workers Union Office and not at any
private place and hence ipso facto set aside the conviction and
sentence under Section 452 IPC read with Section 34 IPC.
13. During the pendency of this matter, respondent Nos. 4 & 5,
namely, Addla Umamaheswara Rao (accused No. 3) and Chintha Lakshmana
Rao (accused No. 4) expired. Hence the special leave petition insofar
as those respondents has already abated, vide order dated 04.02.2014.
14. Shri Altaf Ahmed, senior advocate, appearing for respondents 2
to 5 vehemently supported the Judgment of the High Court to the extent
that it has rightly held that Section 307 IPC is not attracted and
neither was Section 452 IPC. He also opposed the conviction under
Section 324 IPC on the ground that no dangerous weapon or means were
used for causing the injury which according to the learned counsel was
simple in nature.
15. As regards the act of the tying the telephone wire around the
neck and pulling it on both sides and causing an injury thereby, the
learned counsel for the accused, heavily relied on a statement in the
cross examination of the Medical Officer that the Injury No. 5 is
simple in nature and the further statement that if the strangulation is
of high nature the thyroid bone may be dislocated and ruptured and that
there is no danger to life unless there is dislocation or rupture of
the thyroid bone.
16. It is not possible to accept this contention in the
circumstances of the case that the act of strangulating a person by the
throat by a telephone wire and pulling it from both sides, which is
proved here, does not amount to the commission of the offence of
attempt to commit murder under Section 307 IPC.
The first part makes
any act committed with the intention or knowledge that it would amount
to murder if the act caused death punishable with imprisonment up to
ten years.
The second part makes such an act punishable with
imprisonment for life if hurt is caused thereby.
Thus even if the act
does not cause any injury it is punishable with imprisonment up to 10
years. If it does cause an injury and therefore hurt, it is punishable
with imprisonment for life.
The Section reads as under:
-
“307. Attempt to murder.-- Whoever does any act with such
intention or knowledge, and under such circumstances that, if he
by that act caused death, he would be guilty of murder, shall be
punished with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine;
and if hurt is caused to any person by such act, the offender
shall be liable either to [imprisonment for life], or to such
punishment as is hereinbefore mentioned.
Attempts by life convicts. - When any person offending under
this section is under sentence of [imprisonment for life], he
may, if hurt is caused, be punished with death.]
Illustrations
(a) A shoots at Z with intention to kill him, under such
circumstances that, if death ensued A would be guilty of murder.
A is liable to punishment under this section.
(b) A, with the intention of causing the death of a child of
tender years, exposes it in a desert place A has committed the
offence defined by this section, though the death of the child
does not ensue.
(c) A, intending to murder Z, buys a gun and loads it. A has not
yet committed the offence. A fires the gun at Z. He has
committed the offence defined in this section, and, if by such
firing he wounds Z, he is liable to the punishment provided by
the latter part of [the first paragraph of] this section.
(d) A, intending to murder Z by poison, purchases poison and
mixes the same with food which remains in A' s keeping; A has
not yet committed the offence in this section. A places the food
on Z's table or delivers it to Z's servants to place it on Z's
table. A has committed the offence defined in this section.”
-
17. There is no merit in the contention that the statement of
Medical Officer that there is no danger to life unless there is
dislocation or rupture of the thyroid bone due to strangulation means
that the accused did not intend, or have the knowledge, that their act
would cause death. The circumstances of this case clearly attract the
second part of this Section since the act resulted in injury No.5 which
is a ligature mark of 34 cm x 0.5 cm. It must be noted that Section 307
IPC provides for imprisonment for life if the act causes ‘hurt’. It
does not require that the hurt should be grievous or of any particular
degree. The intention to cause death is clearly attributable to the
accused since the victim was strangulated after throwing a telephone
wire around his neck and telling him he should die. We also do not
find any merit in the contention on behalf of the appellant that there
was no intention to cause death because the victim admitted that the
accused were not armed with weapons. Very few persons would normally
describe the Thums-up bottle and a telephone wire used as weapons. That
the victim honestly admitted that the accused did not have any weapons
cannot be held against him and in favour of the accused.
18. We are thus of the view that this is a clear case of intention
to commit the murder of P.W. 1 (Pasupuleti Siva Ramakrishna Rao) the
appellant and the accused acted in concert and committed an offence
under Section 307 IPC. As regards the setting aside of the conviction
by the High Court under Section 452 IPC, we find the reasoning
completely unacceptable and untenable. The High Court has simply set
aside the conviction of the accused under Section 452 IPC read with
Section 34 IPC only on the ground that the victim was sitting at the
Lorry Workers Union Office and not at any private place. Section 452
of the IPC reads as follows:
“452. House-trespass after preparation for hurt, assault or
wrongful restraint.- Whoever commits house-trespass, having made
preparation for causing hurt to any person or for assaulting any
person, or for wrongfully restraining any person, or for putting
and person in fear of hurt, or of assault, or of wrongful
restraint, shall be punished with imprisonment of either
description for a term which may extend to seven years, and
shall also be liable to fine.”
19. There is no doubt that the trespass was into a house and that
the appellant entered the office having prepared to assault the victim
and in any case for putting him in fear of hurt or of assault. There
is nothing in Section 452 IPC to suggest that the use to which the
house is put makes any difference. It is not the requirement of
Section 452 IPC that for a trespass to be an offence the house must be
a private place and not an office. The law protects any house from
trespass, vide Section 448 IPC and further protects persons within the
house from being assaulted or even put in fear of hurt or wrongful
restraint within their own house.
20. We thus find that the accused were not entitled to be acquitted
for the offences under Section 452 IPC read with Section 34 IPC.
21. We accordingly set aside the judgment of the High Court and
restore the Judgment of the Trial Court dated 31st July, 2003 passed
by the learned Assistant Sessions Judge, Bhimavaram in Sessions Case
No. 234 of 1999.
The respondent Nos. 2 [A-1-Chintha Srinivasa Rao] and
3 [A-2-Chintha Krishna] are sentenced to undergo rigorous
imprisonment for a period of seven years and to pay a fine of Rs.
100/- each, in default to suffer simple imprisonment for a period of
three months each for the offence under Section 452 with Section 34
IPC.
The respondent Nos. 2 [A-1-Chintha Srinivasa Rao] and 3 [A-2-
Chintha Krishna] are also sentenced to undergo rigorous imprisonment
for ten years and to pay a fine of Rs. 100/- each, in default simple
imprisonment for a period of three month each for the offence under
Section 307 read with Section 34 IPC. Both the sentences shall run
concurrently. Sentence already undergone, if any, shall be set off.
22. Accordingly this appeal is allowed.
The respondent Nos. 2 [A-1-
Chintha Srinivasa Rao] and 3 [A-2-Chintha Krishna] are directed to
surrender before Judicial Magistrate/Superintendent of Police concerned
forthwith. In case, they failed to do so within one month, steps be
taken, in accordance with law, to apprehend them.
.....................………………..J.
[H.L. Dattu]
…..............………………………J.
[S.A.
Bobde]
New Delhi,
February 20, 2014
The High Court in appeal, referred to the deposition of P.W. 1
(Pasupuleti Siva Ramakrishna Rao) where he had honestly admitted that
accused did not come there armed with any weapon.
The Appellate Court
observed that the injuries were not only simple but were trivial.
As
regards Injury No. 5, it observed that though the Medical Officer
stated that the injury was dangerous to life, it is not clear as to how
the witness stated so, meaning thereby that there was no explanation
for the medical opinion.
Even though the High Court noticed that this
injury is a ligature mark of 34 cm x 0.5 cm size around the neck.
The
High Court accepted that the accused tied a telephone wire around the
neck of P.W. 1 (Pasupuleti Siva Ramakrishna Rao) and pulled it from
both sides but observed that this act may not actually amount to being
dangerous.
It was of the opinion that if a knife is used and only a
grazing injury is caused but no actual stabbing is done on any vital
part of the body, it cannot be said that the injury is dangerous.
Further observing that no intention could be attributed to the accused
to cause the death of P.W. 1 (Pasupuleti Siva Ramakrishna Rao) since
the accused had not come to the scene with dangerous weapon or caused
injuries on the vital part of the body, the High Court modified the
conviction under Section 307 IPC read with Section 34 IPC to Section
324 IPC.
12. As regards the charge under Section 452 IPC, the High Court
observed that the incident occurred when P.W. 1 (Pasupuleti Siva
Ramakrishna Rao) was in the Lorry Workers Union Office and not at any
private place and hence ipso facto set aside the conviction and
sentence under Section 452 IPC read with Section 34 IPC. =
Sec. 307 I.P.C. -Attempt to murder =
It is not possible to accept this contention in the
circumstances of the case that the act of strangulating a person by the
throat by a telephone wire and pulling it from both sides, which is
proved here, does not amount to the commission of the offence of
attempt to commit murder under Section 307 IPC.
The first part makes
any act committed with the intention or knowledge that it would amount
to murder if the act caused death punishable with imprisonment up to
ten years.
The second part makes such an act punishable with
imprisonment for life if hurt is caused thereby.
Thus even if the act
does not cause any injury it is punishable with imprisonment up to 10
years. If it does cause an injury and therefore hurt, it is punishable
with imprisonment for life.
There is no merit in the contention that the statement of
Medical Officer that there is no danger to life unless there is
dislocation or rupture of the thyroid bone due to strangulation means
that the accused did not intend, or have the knowledge, that their act
would cause death. The circumstances of this case clearly attract the
second part of this Section since the act resulted in injury No.5 which
is a ligature mark of 34 cm x 0.5 cm. It must be noted that Section 307
IPC provides for imprisonment for life if the act causes ‘hurt’. It
does not require that the hurt should be grievous or of any particular
degree. The intention to cause death is clearly attributable to the
accused since the victim was strangulated after throwing a telephone
wire around his neck and telling him he should die.
Sec .452 IPC -Trespass into house/private place to commit an offence“452. House-trespass after preparation for hurt, assault or
wrongful restraint. =
There is no doubt that the trespass was into a house and that
the appellant entered the office having prepared to assault the victim
and in any case for putting him in fear of hurt or of assault. There
is nothing in Section 452 IPC to suggest that the use to which the
house is put makes any difference. It is not the requirement of
Section 452 IPC that for a trespass to be an offence the house must be
a private place and not an office. The law protects any house from
trespass, vide Section 448 IPC and further protects persons within the
house from being assaulted or even put in fear of hurt or wrongful
restraint within their own house.
20. We thus find that the accused were not entitled to be acquitted
for the offences under Section 452 IPC read with Section 34 IPC.
21. We accordingly set aside the judgment of the High Court and
restore the Judgment of the Trial Court dated 31st July, 2003 passed
by the learned Assistant Sessions Judge, Bhimavaram in Sessions Case
No. 234 of 1999.
The respondent Nos. 2 [A-1-Chintha Srinivasa Rao] and
3 [A-2-Chintha Krishna] are sentenced to undergo rigorous
imprisonment for a period of seven years and to pay a fine of Rs.
100/- each, in default to suffer simple imprisonment for a period of
three months each for the offence under Section 452 with Section 34
IPC.
The respondent Nos. 2 [A-1-Chintha Srinivasa Rao] and 3 [A-2-
Chintha Krishna] are also sentenced to undergo rigorous imprisonment
for ten years and to pay a fine of Rs. 100/- each, in default simple
imprisonment for a period of three month each for the offence under
Section 307 read with Section 34 IPC. Both the sentences shall run
concurrently. Sentence already undergone, if any, shall be set off.
22. Accordingly this appeal is allowed.
The respondent Nos. 2 [A-1-
Chintha Srinivasa Rao] and 3 [A-2-Chintha Krishna] are directed to
surrender before Judicial Magistrate/Superintendent of Police concerned
forthwith. In case, they failed to do so within one month, steps be
taken, in accordance with law, to apprehend them.
2014(Feb.Part) judis.nic.in/supremecourt/filename=41242
H.L. DATTU, S.A. BOBDE
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 466 OF 2014
[Arising out of SLP (Crl.) No. 7044 of 2007]
PASUPULETI SIVA RAMAKRISHNA RAO …. APPELLANT
VERSUS
STATE OF ANDHRA PRADESH & ORS. …. RESPONDENTS
JUDGMENT
S. A. BOBDE, J.
1. Leave granted.
2. The appellant/defacto complainant has filed this appeal against
the judgment dated 1st February, 2007 passed by the learned Single
Judge of the High Court of Judicature at Andhra Pradesh.
The High
Court allowed the appeal in part, and acquitted the accused for the
offences under Section 452 read with Section 34 of the Indian Penal
Code [hereinafter referred to as “IPC”].
The High Court further
modified the conviction and sentence under Section 307 read with
Section 34 IPC to one -under Section 324 IPC and accordingly reduced
the sentence of 10 years to rigorous imprisonment for two months each
and also to fine of Rs. 2,000/- each, in default to suffer simple
imprisonment for a period of six months. Further, an amount of Rs.
4,000/- is directed to be paid by each of the accused collectively as
compensation to P.W. 1 (Pasupuleti Siva Ramakrishna Rao) – the victim.
Earlier, the Trial Court convicted the accused as follows:
A-1 to A-4 under Section 452 read with Section 34 IPC for rigorous
imprisonment for 7 years and fine of Rs. 100/- each, in default, to
suffer simple imprisonment for a period of 3 months each and under
Section 307 read with Section 34 IPC for rigorous imprisonment for 10
years and fine of Rs. 100/- each, in default, to suffer simple
imprisonment for a period of 3 months each.
Aggrieved by the Judgment passed by the High Court, the present appeal
is filed.
3. The prosecution case is that the victim P.W. 1 (Pasupuleti Siva
Ramakrishna Rao) was the President of Bhimavaram Taluk Lorry Workers
Union. A-1 - Chintha Srinivasa Rao @ Bandi Srinu and A-2 - Chintha
Krishna @ Bandi are brothers. A-4 -Chintha Lakshmana Rao is their
cousin. A-3 -Addla -Umamaheswara Rao is the close associate of A-1, A-
2 and A-4.
They are all residents of Bhimavaram. About a fortnight
prior to the date of incident – 20.04.1998, the victim P.W. 1
(Pasupuleti Siva Ramakrishna Rao) and some other Lorry Workers
collected Rs. 10,000/- as donations to perform the marriage of the
daughter of a poor lorry worker. That incensed the accused who
believed that P.W. 1 (Pasupuleti Siva Ramakrishna Rao) ought not to
have collected donations from their locality.
On 20.04.1998 at about
8.00 pm when P.W. 1 (Pasupuleti Siva Ramakrishna Rao) was in the Lorry
Workers Union Office near Anakoderu Canal in Undi Road, Bhimavaram, the
accused armed with deadly weapons entered the office, abused P.W. 1
(Pasupuleti Siva Ramakrishna Rao) in filthy language and threatened him
with death because he had collected donations from their area. They
attacked him. A-1 - Chintha Srinivasa Rao hit him on his head with the
cool drink bottle causing a grievous injury and instigated other
accused to tie a telephone wire around his neck to kill him. He along
with A-2 - Chintha Krishna and A-3 - Addla Umamaheswara Rao tied the
telephone wire around the neck of P.W. 1 (Pasupuleti Siva Ramakrishna
Rao) and pulled it from both sides to strangulate him with the
intention to kill him. A-4 - Chintha Lakshmana Rao beat him on his
right cheek with an iron rod. A-2 - Chintha Krishna beat him on the
forehead and A-3 - Addla Umamaheswara Rao and A-4 - Chintha Lakshmana
Rao beat him on the left eye and on the cheek. On making a hue and
cry, P.W. 1 (Pasupuleti Siva Ramakrishna Rao) was rescued by others,
who were present.
On a complaint, Crime No. 85/98 under Sections 307
and 452 IPC read with Section 34 IPC was registered, investigated and a
charge sheet was filed against all the accused. Charges were framed
and read over to the accused. They did not plead guilty.
4. P.Ws. 1 to 11 were examined and Exhibits P1 to P17 were marked
apart from M.Os. 1 to 5 on behalf of the prosecution. No oral
evidence was adduced on behalf of the accused.
5. The learned trial Judge convicted and sentenced the accused as
indicated above.
6. P.W. 3 (Kotipalli Srinivas) and P.W. 5 (Sunkara Sreenivasa Rao)
eye witnesses were declared hostile. P.W. 7 (Marri Sambhasiva) is the
circumstantial witness. P.W. 8 (Dirisala Murali) is the photographer.
P.W. 9 (Grandhi Sree Rama Murthy) is the panch witness.
7. P.W. 10 (Dr. B. Swarajya Lakshmi, C.A.S.) is the medical
officer, who examined P.W. 1 (Pasupuleti Siva Ramakrishna Rao) and
found the following injuries:
-
“1. Irregular bleeding lacerated injury of 3 cm x ¼ cm x ¼ cm size
present on the left parietal region of the scalp.
2. A contusion of 3 cm x size present lateral to the left eye with
overlying abrasion of ¼ cm size red in colour.
3. A contusion of 2 cm x 1 cm size present on the left eye upper
eye lid.
4. A contusion of 4 cm with abrasion of ¼ cm size present lateral
on the right side of the fore head.
5. Ligature mark of 34 cm x 0.5 cm size present below the thyroid
cartilage on the front, right side and left side of the neck, red
in colour.
6. A contusion of 2 cm x 1 cm size present on the right temple.
7. A contusion of 2 cm x 2 cm size present on the right cheek.
8. An oblique abrasion of 10 cm x 5 cm size present on the ventral
aspect of the left arm, red in colour.”
8. The Medical Officer [MO] opined that Injury No. 5 endangered the
life of P.W. 1 (Pasupuleti Siva Ramakrishna Rao). That the other
injuries are simple in nature and could have been caused as alleged.
9. P.W. 1 (Pasupuleti Siva Ramakrishna Rao) deposed that he
collected donations for performing the marriage of the daughter of
Pasupuleti Satyanarayan, a driver and a poor man. The accused
questioned and threatened him about the collection of contribution from
their territory and warned him that they would take away his life. On
20.04.1998 at about 8.00 PM when he was in the Lorry Workers Union
Office, the accused trespassed into the Union Office and abused him.
They told him that he cannot become a leader of their territory and
collect donations and they would not leave the Office unless they beat
him. A-1 - Chintha Srinivasa Rao beat him on his head with a cool
drink (Thums up) bottle and said he should die. He directed others to
tie a telephone wire around his neck therefore A-2 - Chintha Krishna
beat him on the forehead and A-3 - Addla Umamaheswara Rao tied a
telephone wire around his neck and pulled wire. Then A-4 - Chintha
Lakshmana Rao beat him with the rod on his right cheek along with
abuses. A-2 - Chintha Krishna also beat him with the rod on his
forehead and A-3 - Addla Umamaheswara Rao and A-4 - Chintha Lakshmana
Rao beat him on the upper side of his eyebrow and his cheek. He named
others who were present and intervened to rescue him stating that but
for that he would have been killed. His shirt was stained with his
blood. They left behind the broken Thums-up bottle, telephone wire and
iron rod. He was hospitalized for about 20 days. In cross examination
his version was not shaken. He accepted that the accused were not
armed with any weapon and said that the Thums-up bottle broke on his
head, because of the impact. The deposition of other witnesses support
the version of the injured witness - P.W. 1 (Pasupuleti Siva
Ramakrishna Rao). We have not referred to the depositions of
witnesses who have been declared hostile since such declaration is not
of much consequences in this case. The other depositions are in tune
with the deposition of PW1, the injured witness.
10. The Trial Court correctly appreciated the evidence and rejected
the argument that the other witnesses were not reliable because they
were interested witnesses. As regards charge under Section 34 IPC, the
Trial Court relied on the settled position in law that it is not
necessary that there should be a clear positive evidence about the
meeting of mind before the occurrence and that if there are more than
one accused a common intention to kill can be inferred from the
circumstances of the case. The prosecution need not prove the overt act
of the accused. As regards the charge under Section 452 IPC the Trial
Court held that there was clear intention of accused here and that it
was clearly established that the accused went to the office of P.W. 1
(Pasupuleti Siva Ramakrishna Rao) in a car and the other circumstances
clearly establish that there was preparation for committing the
offence. As noticed earlier, the Trial Court convicted and sentenced
accused under Section 452 IPC for 7 years and under Section 307 IPC for
10 years read with Section 34 IPC.
11. The High Court in appeal, referred to the deposition of P.W. 1
(Pasupuleti Siva Ramakrishna Rao) where he had honestly admitted that
accused did not come there armed with any weapon. The Appellate Court
observed that the injuries were not only simple but were trivial.
As
regards Injury No. 5, it observed that though the Medical Officer
stated that the injury was dangerous to life, it is not clear as to how
the witness stated so, meaning thereby that there was no explanation
for the medical opinion.
Even though the High Court noticed that this
injury is a ligature mark of 34 cm x 0.5 cm size around the neck.
The
High Court accepted that the accused tied a telephone wire around the
neck of P.W. 1 (Pasupuleti Siva Ramakrishna Rao) and pulled it from
both sides but observed that this act may not actually amount to being
dangerous.
It was of the opinion that if a knife is used and only a
grazing injury is caused but no actual stabbing is done on any vital
part of the body, it cannot be said that the injury is dangerous.
Further observing that no intention could be attributed to the accused
to cause the death of P.W. 1 (Pasupuleti Siva Ramakrishna Rao) since
the accused had not come to the scene with dangerous weapon or caused
injuries on the vital part of the body, the High Court modified the
conviction under Section 307 IPC read with Section 34 IPC to Section
324 IPC.
12. As regards the charge under Section 452 IPC, the High Court
observed that the incident occurred when P.W. 1 (Pasupuleti Siva
Ramakrishna Rao) was in the Lorry Workers Union Office and not at any
private place and hence ipso facto set aside the conviction and
sentence under Section 452 IPC read with Section 34 IPC.
13. During the pendency of this matter, respondent Nos. 4 & 5,
namely, Addla Umamaheswara Rao (accused No. 3) and Chintha Lakshmana
Rao (accused No. 4) expired. Hence the special leave petition insofar
as those respondents has already abated, vide order dated 04.02.2014.
14. Shri Altaf Ahmed, senior advocate, appearing for respondents 2
to 5 vehemently supported the Judgment of the High Court to the extent
that it has rightly held that Section 307 IPC is not attracted and
neither was Section 452 IPC. He also opposed the conviction under
Section 324 IPC on the ground that no dangerous weapon or means were
used for causing the injury which according to the learned counsel was
simple in nature.
15. As regards the act of the tying the telephone wire around the
neck and pulling it on both sides and causing an injury thereby, the
learned counsel for the accused, heavily relied on a statement in the
cross examination of the Medical Officer that the Injury No. 5 is
simple in nature and the further statement that if the strangulation is
of high nature the thyroid bone may be dislocated and ruptured and that
there is no danger to life unless there is dislocation or rupture of
the thyroid bone.
16. It is not possible to accept this contention in the
circumstances of the case that the act of strangulating a person by the
throat by a telephone wire and pulling it from both sides, which is
proved here, does not amount to the commission of the offence of
attempt to commit murder under Section 307 IPC.
The first part makes
any act committed with the intention or knowledge that it would amount
to murder if the act caused death punishable with imprisonment up to
ten years.
The second part makes such an act punishable with
imprisonment for life if hurt is caused thereby.
Thus even if the act
does not cause any injury it is punishable with imprisonment up to 10
years. If it does cause an injury and therefore hurt, it is punishable
with imprisonment for life.
The Section reads as under:
-
“307. Attempt to murder.-- Whoever does any act with such
intention or knowledge, and under such circumstances that, if he
by that act caused death, he would be guilty of murder, shall be
punished with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine;
and if hurt is caused to any person by such act, the offender
shall be liable either to [imprisonment for life], or to such
punishment as is hereinbefore mentioned.
Attempts by life convicts. - When any person offending under
this section is under sentence of [imprisonment for life], he
may, if hurt is caused, be punished with death.]
Illustrations
(a) A shoots at Z with intention to kill him, under such
circumstances that, if death ensued A would be guilty of murder.
A is liable to punishment under this section.
(b) A, with the intention of causing the death of a child of
tender years, exposes it in a desert place A has committed the
offence defined by this section, though the death of the child
does not ensue.
(c) A, intending to murder Z, buys a gun and loads it. A has not
yet committed the offence. A fires the gun at Z. He has
committed the offence defined in this section, and, if by such
firing he wounds Z, he is liable to the punishment provided by
the latter part of [the first paragraph of] this section.
(d) A, intending to murder Z by poison, purchases poison and
mixes the same with food which remains in A' s keeping; A has
not yet committed the offence in this section. A places the food
on Z's table or delivers it to Z's servants to place it on Z's
table. A has committed the offence defined in this section.”
-
17. There is no merit in the contention that the statement of
Medical Officer that there is no danger to life unless there is
dislocation or rupture of the thyroid bone due to strangulation means
that the accused did not intend, or have the knowledge, that their act
would cause death. The circumstances of this case clearly attract the
second part of this Section since the act resulted in injury No.5 which
is a ligature mark of 34 cm x 0.5 cm. It must be noted that Section 307
IPC provides for imprisonment for life if the act causes ‘hurt’. It
does not require that the hurt should be grievous or of any particular
degree. The intention to cause death is clearly attributable to the
accused since the victim was strangulated after throwing a telephone
wire around his neck and telling him he should die. We also do not
find any merit in the contention on behalf of the appellant that there
was no intention to cause death because the victim admitted that the
accused were not armed with weapons. Very few persons would normally
describe the Thums-up bottle and a telephone wire used as weapons. That
the victim honestly admitted that the accused did not have any weapons
cannot be held against him and in favour of the accused.
18. We are thus of the view that this is a clear case of intention
to commit the murder of P.W. 1 (Pasupuleti Siva Ramakrishna Rao) the
appellant and the accused acted in concert and committed an offence
under Section 307 IPC. As regards the setting aside of the conviction
by the High Court under Section 452 IPC, we find the reasoning
completely unacceptable and untenable. The High Court has simply set
aside the conviction of the accused under Section 452 IPC read with
Section 34 IPC only on the ground that the victim was sitting at the
Lorry Workers Union Office and not at any private place. Section 452
of the IPC reads as follows:
“452. House-trespass after preparation for hurt, assault or
wrongful restraint.- Whoever commits house-trespass, having made
preparation for causing hurt to any person or for assaulting any
person, or for wrongfully restraining any person, or for putting
and person in fear of hurt, or of assault, or of wrongful
restraint, shall be punished with imprisonment of either
description for a term which may extend to seven years, and
shall also be liable to fine.”
19. There is no doubt that the trespass was into a house and that
the appellant entered the office having prepared to assault the victim
and in any case for putting him in fear of hurt or of assault. There
is nothing in Section 452 IPC to suggest that the use to which the
house is put makes any difference. It is not the requirement of
Section 452 IPC that for a trespass to be an offence the house must be
a private place and not an office. The law protects any house from
trespass, vide Section 448 IPC and further protects persons within the
house from being assaulted or even put in fear of hurt or wrongful
restraint within their own house.
20. We thus find that the accused were not entitled to be acquitted
for the offences under Section 452 IPC read with Section 34 IPC.
21. We accordingly set aside the judgment of the High Court and
restore the Judgment of the Trial Court dated 31st July, 2003 passed
by the learned Assistant Sessions Judge, Bhimavaram in Sessions Case
No. 234 of 1999.
The respondent Nos. 2 [A-1-Chintha Srinivasa Rao] and
3 [A-2-Chintha Krishna] are sentenced to undergo rigorous
imprisonment for a period of seven years and to pay a fine of Rs.
100/- each, in default to suffer simple imprisonment for a period of
three months each for the offence under Section 452 with Section 34
IPC.
The respondent Nos. 2 [A-1-Chintha Srinivasa Rao] and 3 [A-2-
Chintha Krishna] are also sentenced to undergo rigorous imprisonment
for ten years and to pay a fine of Rs. 100/- each, in default simple
imprisonment for a period of three month each for the offence under
Section 307 read with Section 34 IPC. Both the sentences shall run
concurrently. Sentence already undergone, if any, shall be set off.
22. Accordingly this appeal is allowed.
The respondent Nos. 2 [A-1-
Chintha Srinivasa Rao] and 3 [A-2-Chintha Krishna] are directed to
surrender before Judicial Magistrate/Superintendent of Police concerned
forthwith. In case, they failed to do so within one month, steps be
taken, in accordance with law, to apprehend them.
.....................………………..J.
[H.L. Dattu]
…..............………………………J.
[S.A.
Bobde]
New Delhi,
February 20, 2014
