J U D G M E N T :

This Criminal Appeal is filed by the accused No.2-appellant to set-aside the conviction and sentence imposed against him in S.C.No.33 of 2012 on the file of learned Special Judge for Economic Offences-cum-VIII Additional Metropolitan Sessions Judge at Hyderabad.

2. The appellant, who is arrayed as A-2 in S.C.No.33 of 2012, was convicted for the offence punishable under Sections 307, 333 and 341 read with 34 of Indian Penal Code (for Short “IPC”) and Section 3 of the Prevention of Damage to Public Property Act, 1984 (for Short “PDPP Act”) and sentenced to undergo Rigorous Imprisonment for a period of four years and to pay a fine of Rs.500/-, in default he shall undergo S.I for one month for the offence under Section 307 read with 34 of IPC. He was further sentenced to undergo Simple Imprisonment for one month for the offence under Section 341 of IPC. He is further sentenced to undergo Rigorous Imprisonment for a period of one year and to pay a fine of Rs.500/- (Rupees five hundred only) for the offence under Section 3 of PDPP Act.

3. Briefly, the case of the prosecution is that appellant, who is arrayed as A-2 along with A-1 were standing near Patel Nagar, Muslim Grave Yard on 01.01.2008 at 2140 hours, PW-1 being the conductor of bus bearing No.AP-10-Z-6355 issuing tickets to the passengers, all of a sudden he heard arguments with the driver of the said bus who is PW-2 and he immediately got down from the bus and ran to front side of the bus, where he saw A-1 and A-2 infront of the bus, one of them is physically handicapped standing with the help of crutches under his arms. When PW-1 asked A-1 and A-2 to move a side and give passage to the bus, upon which there took place a heated argument and according to the witnesses A-1 (who died prior to trial) stabbed PW-2 with knife. The allegation against the appellant is that A-2 abused PW-2 in Urdu as “ARE MAKE LOUDE, MALOOM HAI KYA MY KOUN HOON., MY IS BASTI KA DADA HOON AUR MERE KU HI HATO BOLTA KYA TU” and lifted his crutch with his left hand and hit on the left side front wind screen glass and caused damaged to it. On the basis of Ex.P-1-complaint by the PW-1, Police registered case for the offence punishable under Sections 307, 333, 341 read with 34 of IPC and Section 3 of PDPP Act. Having investigated the case, charge sheet was filed against the appellant for the said offences.

4. The learned Sessions Judge having examined PWs.1 to 9 of which PW-1 and PW-2 are eye witnesses and marked Exs.P1 to P14. The learned Sessions Judge having appreciated the evidence of the witnesses found that the appellant was guilty for the said offences and accordingly he was convicted and sentenced as stated supra.

5. Learned Senior Counsel appearing for the appellant would submit that even according to the version of the prosecution, it was A-1, who had stabbed the driver/PW-2. It is not the case of the prosecution that accused No.2 stabbed the driver/P.W.2. However, the charge reads that it was A-2 who had stabbed. The only overt act attributed to the appellant/A-2 is that he was standing on his crutches and in fact he had beat the wind screen of the bus with his crutch, resulting in the windshield being broken. When the appellant had not assisted or had not done any acts to enable A-1 to stab the driver/PW-2, the question of convicting him for the offence under Section 307 of IPC i.e., for attempting to murder, does not arise. Learned counsel for the appellant further argued that utmost even accepting the case of the prosecution, a case may be made out against the appellant for the offence under Section 3 of the P.D.P.P.Act.

6. PW-1 and PW-2, who are the eye witnesses and the injured, have specifically stated that it was A-1, who stabbed PW-2. It is not their case that at any point of time the appellant/A-2 had assisted A-1 in any manner when A-1 stabbed PW-2. In the said circumstances, no charge is proved for the offence under Section 307 read with 34 of IPC as there is no evidence