HON’BLE SRI JUSTICE D.S.R.VARMA AND HON’BLE SRI JUSTICE R.KANTHA RAO CRL.A.NO.209 OF 2007 DATED: 08.10.2009 BETWEEN: Renu and others .. Appellants And State of A.P. Rep. By its Public Prosecutor, High Court of A.P., Hyderabad. .. Respondents HON’BLE SRI JUSTICE D.S.R.VARMA AND HON’BLE SRI JUSTICE R.KANTHA RAO CRL.A.NO.209 OF 2007 JUDGMENT: (Per RKR,J) This appeal is directed against the judgment, dated 09.02.2007 passed by the Sessions Judge, Chittoor in Sessions Case No.281 of 2005 whereby and whereunder the appellants were convicted for the offence under Section 302 read with Section 34 IPC and each of them was sentenced to under go imprisonment for life and to pay a fine of Rs.500/-. 2. The prosecution story, which is unfolded from Ex.P.1 report lodged by PW.1, is as follows: PW.1 – K.Rosamma is the wife of the K.Chinnabba (hereinafter referred to as ‘the deceased’). They and the appellants are residents of Thummindapalyam Village in Chittoor Rural East Circle Police Station of the District Chittoor. Since five years prior to the incident, there is a boundary dispute between both the parties with regard to the field and there used to be quarrels between both the parties. On 01.06.2005 while PW.1 and the deceased were ploughing the land near Bodigutta at about 4.00 PM all the appellants came up on the land and picked up a quarrel with the deceased on the pretext that the deceased had thrown some stones into the land of the appellants which is adjacent land of the appellants. The deceased replied that the stones might have been scattered by the cattle and he was not responsible for the said act. As such, there was some altercation between the deceased and the appellants in that regard, during the course of which, A2 and A3 caught hold of the deceased and A1 struck a blow with a knife (konki) on the left side of the neck of the deceased two or three times and also on the left leg. On that, the deceased fell down. PW.1 raised cries and snatched the konki (knife ) from the hands of the A1 and threw it away. Thereafter, all the three appellants fled away from the place of occurrence. At about 10.00 PM on the same day, PW.1 lodged a report in Chittoor Taluk Police Station. Basing on the said report, the Sub Inspector of Police (PW.12) registered a case in Crime No.25 of 2005 for the offence under Section 302 IPC. PW.13 – Inspector of Police, Chittoor Rural West, I/c Chitoor Rural East took up investigation and after completing investigation, laid charge sheet. 3. Before the learned trial Court, the prosecution in order to prove its case examined PWs.1 to 13, marked Exs.P.1 to P.16 and Mos 1 to 8. The appellants did not propose to examine any defence witnesses, but marked Exs.D.1 to D.15 on their behalf. 4. The learned trial Court rested its decision mainly on the evidence of PWs.1 and 2. PW.1 is the wife of the deceased. PW.2 is the son of the deceased, aged about 15 years on the date of the incident and was considered as child witness by the trial Court and after conducting preliminary examination, the trial Court considered him to be competent witness, capable of understanding the questions put to him and giving rational answers. 5. PW.1 stated in her deposition that on 01.06.2005 at about 4.00 PM the appellants came to the land of the deceased and questioned him about throwing of stones in their land which is adjacent to the land of the deceased. Over the said issue a quarrel was ensued between the deceased and the appellants, of which the appellants threatened the deceased to kill him and thereafter, when the deceased started running away A2 and A3 caught hold of the deceased and A1 hacked with a konki (knife) on the neck of the deceased, she raised cries and snatched the konki from the hands of A1 and during the said process, the said konki fell on A1 and he received injury. 6. Whereas, PW.2 stated in his evidence before the trial Court that at the time of incident, he was grazing the cattle near Bodigutta. He heard the cries of his mother and rushed to the spot and witnessed A1 to A3 running away and A1 was carrying a konki (knife). Subsequently, he went to the place of occurrence and found his father dead near Mango Garden of Kuppuswamy. 7. Dr.K.S.Hari Babu conducted the postmortem examination over the body of the deceased and his presence could not be secured as he was away from the country. PW.10 was examined to speak about the contents of Ex.P.9 – post mortem report. The following are the injuries on the body of the deceased: Cut injury extending from just below the (left) angle of Jaw to Nape of Neck, with sharp edges up to vertebral column, measurements (15 x 10 x 10 cm) Injury to the spinal cord. Tailing towards Nape of Neck (left) Internal and external carotid arteries are cut Internal Jugular veins were cut and vertebral arteries are cut. The deceased appears to have died of haemorrhage and shock. Injury to spinal cord and vertebra column and cut of the internal and external carotid arteries and Jugular vein.” 8. We have heard the learned counsel appearing for the appellants and the learned Public Prosecutor for the State. 9. The learned Senior Counsel Sri C.Padmanabha Reddy appearing for the appellants would submit that from the contents of Ex.P.1 – report lodged by PW.1, it is mentioned that during the course of quarrel itself A2 and A3 caught hold of the deceased and A1 hacked him with a konki (knife). Whereas, the evidence before the Court, the story was developed by the prosecution to the effect that all the appellants threatened the deceased to kill him, that the deceased being afraid, started running away, they chased him and thereafter, A2 and A3 caught hold of the deceased at Mango Garden of Kuppuswamy and A1 hacked him on the neck with konki (knife). Thus, according to the learned senior counsel not only the story has been developed by the prosecution in the course of evidence of PWs.1 and 2, but also the scene of offence itself was shifted and this is nothing but an attempt to impress upon the Court that the deceased was killed by A1 in furtherance of the common intention of A2 and A3, as such the entire version of the prosecution should be disbelieved. 10 On the other hand, the learned Public Prosecutor would contend that because of minor inconsistencies or discrepancies in the version of PWs.1 and 2 and basing on the entire evidence, the trial Court rightly placed reliance on the evidence of PWs.1 and 2 and the conviction and sentence passed by the trial Court has to be upheld. 11. Before dealing with the question as to whether actually the death of the deceased was caused in furtherance of the common intention of A1 to A3, we feel it essential to refer the report lodged by A.1, which is marked as Ex.D.6. Ex.D.6 indicates that A1 lodged a report at 7.00 P.M i.e. three hours prior to lodging of Ex.P.1 report by PW.1. The contents of which are as follows: “I am residing in Thummindapalyam. I live by cultivation. For the past 40 years disputes are going on between me and my villager Muni Reddy and his sons. Cases were filed in Court also. Today viz., 1.6.2005 by evening at about 4.00 p.m. while I was in my field near Bodi Gutta K.Chinnabba s/o Muni Reddy who was in his field which is on western side to my field, picked up stones from his field and had thrown into my field. When I questioned him why he was doing like this, he high handedly replied and said that I may do what ever I like, so saying, he beat me with a bill hook on my right leg, and hit with a stone on my head. When I cried loudly, he ran away. I sustained bleeding injuries. Hence, I request to take suitable action against Chinnabba.” 12. A perusal of Ex.D.6 indicates that there are quarrels between the deceased and A1 and the presence of A2 and A3 is not mentioned in Ex.D.6 – report. Even though it is lodged by one of the accused, the significant factor is the non-mentioning of names of A2 and A3 at the place of occurrence at relevant time. A3 was aged 70 years on the date of incident and it is highly difficult to believe that he chased the deceased up to the Mango garden of Kuppuswamy along with A.2 so as to facilitate A1 to hack the deceased. Basing on the report of A1 also a case is registered and investigated into and a final report was filed since the deceased was accused in the said case. However, the important aspect, which has to be borne in mind, is that there is an injury on the knee of A1 and he was treated in the hospital for a period of 15 days, which is borne out from the record. The prosecution sought to explain the injury through PW.1 to the effect that when PW.1 snatched away the sickle from A1 it fell on the knee of A1 due to which A1 received injury. Therefore, it cannot be said that the prosecution in this case failed to explain the injury on the knee of A1. 13. However, the crucial aspect requires consideration is whether the evidence of PW-1 insofar as A2 an A3 is concerned, can be believed. 14. In view of the discrepancy in the evidence of PW.1 in regard to the manner in which the incident supposed to have taken place and shifting the scene of offence from the field of the deceased to the Mango garden of Kuppuswamy, the evidence of PW.1 as well as PW.2 is undependable and it is quite unsafe to convict A2 and A3 for the offence under Section 302 read with Section 34 IPC which in our view is erroneously done by the learned trial Court. According to us, basing on the evidence on record, it is not possible to believe the participation of A2 and A3 in the commission of offence and they cannot be convicted for any offence having recourse to the testimony of PWs.1 and 2, who are the interested witnesses. 15. However, the evidence of PWs.1 and 2, though consists of minor discrepancies is found to be reliable, in so far as A1 is concerned. The testimony of PW.1 is consistent on material aspects as regards the commission of offence by A1. Therefore, in our considered view, A2 and A3 can be given benefit of doubt, whereas A1 is liable for punishment for causing the death of the deceased. 16. The next question which requires consideration is whether the learned trial Court is justified in recording the conviction against A1 for the offence of murder punishable under Section 302 IPC. 17. On similar facts, the Supreme Court in PATEL RASIKLAL BECHARBHAI AND OTHERS v STATE OF GUJARAT[1] , held as follows: “In a sudden quarrel the deceased rebuked accused and the accused got infuriated and gave single blow with agricultural implement which he was carrying. Blow fell on the neck of deceased and proved to be fatal. It could not be said that accused intended to cause the neck injury. He is not liable to be convicted under Section 300(3) and therefore conviction altered to one under Section 304, Part II of IPC.” 18. In the present case, the konki (sickle), which was used by A1 in the commission of offence is admittedly an agricultural tool, which was brought by him to the field for clearing the bushes. From the manner in which the incident took place, as disclosed in the version of PW.1, A1 resorted to hack the deceased with the konki (sickle) in the course of quarrel. It is apparent that there was no intention on his part to kill the deceased. A1 inflicted one blow on the neck of the deceased, certainly he might be having knowledge that the injury causing the death of the deceased. Therefore, even if the said injury is sufficient to cause the death of the deceased in the ordinary course of events, in the absence of any intention on his part to cause death, the offence would fall under Section 304, Part II IPC, but not under Section 302 IPC. 19. Therefore, in this appeal the conviction passed under Section 302 IPC is altered to one under Section 304, Part II of IPC. Further having regard to the facts and circumstances of the present case and the manner in which the incident was caused, we impose punishment of rigorous imprisonment of seven years against A1 for the offence punishable under section 304, Part II of IPC. 20. For the foregoing reasons, the conviction passed by the trial Court against the first appellant/A1 is confirmed and the conviction is altered to one under Section 304 Part II of IPC from Section 302 read with 34 IPC and he is sentenced to undergo rigorous imprisonment for a period of seven years. The conviction and sentence passed by the trial Court against the appellants 2 and 3/A2 and A3 are hereby set aside in this appeal and they are acquitted. The appellants 2 and 3/A.2 and A3, who are now undergoing jail sentence in the present case, shall be set at liberty forthwith, if they are not required in any other case. The fine amount, if any, paid by the appellants 2 and 3/ A2 and A3 shall be refunded to them. 21. Accordingly, the appeal is partly allowed. _________________ D.S.R.VARMA,J ___________________ R.KANTHA RAO,J Dated: 08.10.2009 Kvrm/ccm [1] AIR 1992 SC 1150