THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1721 of 2007 JUDGEMENT: (Per Hon’ble Sri Justice Raja Elango) The present appeal is preferred against the judgment dated 07.08.2007 passed by the learned Sessions Judge, Prakasham Division, Ongole in S.C.No.267 of 2006, whereby the appellant/sole accused was found guilty of the offence under Section 304 Part I I.P.C., convicted therefor and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.200/- in default to suffer simple imprisonment for one month. 2. Today, at the time of hearing, we have noticed that this appeal is ought to have been preferred before a Single Judge, but however, the same is wrongly posted before the Division Bench and the Bench admitted the appeal and dismissed the bail application. Thereafter, the appeal is listed before us for final hearing. Even though this appeal has to be decided by a learned Single Judge, taking into consideration the fact that no prejudice would be caused to the accused if the same is disposed of by the Division Bench, we are disposing of the same. 3. The brief facts that are necessary for disposal of this case are as follows: R.Subbulu (P.W.4) is the mother and K.Kalyani (L.W.7) is the sister of Rathikindi Srinivasa Rao @ Srinu (hereinafter referred to as ‘the deceased’), whereas P.Seshaiah (P.W.1) and P.Nageswara Rao (P.W.2) are the brothers of P.W.4. The husband of P.W.4 died 15 years back and at about five years back, P.W.4 performed the marriage of K.Kalyani. The deceased used to go to Hyderabad for attending masonary work. The accused is the resident of the same locality, where P.W.4 is residing. Both the accused and P.W.4 are fruit vendors at Chimakurti Mandal. In due course since five years prior to the occurrence the accused developed illicit intimacy with P.W.4. While so, in the early hours of 14.05.2005 the deceased came from Hyderabad to his village for attending Anjaneyaswami Thirunallu and in the morning of that day (in the absence of the deceased at home) the accused came to the house of P.W.4 in a drunken state and demanded for money. As P.W.4 failed to pay the amount, the accused abused and beat her and went away. Thereafter, at about 10.00 a.m., the deceased came to the house and enquired about the act of the accused and warned P.W.4. Then P.W.4 went to Chimakurthi for attending her work. The accused again came to the house of P.W.4 and started abusing and then the deceased came out of the house and asked the accused not to come to their house or abuse his mother. Then the accused challenged the deceased and in the process an altercation took place between them. The accused grew wild against the deceased alleging that if he (the deceased) is killed there will be no obstacle to him and by saying so the accused went to his house, brought a small size crow bar (M.O.1) and came upon the deceased when the deceased was standing on the road. On seeing the accused, the deceased tried to ran away, but the accused beat him with the iron crow bar (M.O.1) on the backside of the head of the deceased and caused bleeding injury. On seeing the same, P.Ws.1 and 2, who are standing there asked the accused not to beat, but the accused again beat the deceased twice and ran away from the scene of offence by throwing the crow bar at that place. Immediately, P.W.1 and P.W.3 took the deceased to Chimakurthi in an auto and from there they shifted the deceased to Government Hospital, Ongole, where the doctor examined the deceased and declared him as dead. Thereafter, P.W.1 informed to his relatives and P.W.4 and lodged a report (Ex.P.1) in the police station. Based on Ex.P.1-report, P.W.7-Sub Inspector of Police registered a case in Crime No.57 of 2005 under Section 302 I.P.C., issued Ex.P.5-F.I.R to all the officers and sent the original to the court. As P.W.8-Circle Inspector of Police was on leave, P.W.7 took up investigation, observed the scene of offence in the presence of P.Ws.5 and 6, seized the crow bar - M.O.1 and other material objects from the scene of offence, and held inquest over the dead body of the deceased in the presence of P.W.6, T.Anjaiah (L.W.13) and V.Ananda Rao (L.W.14). He also seized the clothes of the deceased in the presence of P.W.6 and L.W.13, examined P.Ws.1 to 4 and L.Ws.4, 5, 7 to 10 and recorded their statements. P.W.9-the doctor conducted autopsy over the dead body of the deceased and issued Ex.P.9-post mortem certificate. P.W.8, who took up further investigation, verified the investigation done by P.W.7, arrested the accused in the presence of Y.Nancharaiah (L.W.15) and T.Murali Krishna (L.W.16), recorded the disclosure statement of the accused and sent him for judicial remand. He forwarded the material objects including M.O.1 crow bar to the Regional Forensic Science Laboratory, Guntur for analysis and after receipt of report-Ex.P.8 and post mortem report – Ex.P.9, he laid charge sheet against the accused on 19.09.2005 for the offence under Section 302 I.P.C before the III Additional Judicial Magistrate of First Class, Ongole, who has taken cognizance and committed the case to the Court of Sessions. 4. On committal, the Sessions Judge framed a charge against the accused for the offence under Section 302 I.P.C. When the said charge was read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 5. To substantiate its case, the prosecution examined P.Ws.1 to 9 and got marked Exs.P.1 to P.9, besides case properties M.Os.1 to 5. After the closure of prosecution side evidence, the accused was examined under Section 313 Cr.P.C so as to enable him to explain the incriminating circumstances appearing against him. The accused denied the allegations and pleaded not guilty. However, no oral or documentary evidence was adduced on behalf of the accused. 6. The main contention advanced by the learned counsel for the appellant is that in Ex.P.1-complaint lodged by P.W.1, it is not stated that the accused caused three blows, whereas he improved his version while deposing before the Court below and stated that the accused caused three blows. She further contended that the medical evidence is totally against the evidence of the eyewitnesses. 7 . We have heard both sides and perused the entire material available on record. 8. It is not necessary to discuss the evidence of all the witnesses for disposal of this case since the entire case of the prosecution is based on the evidence of P.Ws.1 and 2, who are eyewitnesses to the occurrence. They categorically deposed before the Court below the reason for the quarrel, the manner in which the accused caused injuries and also the weapon used by the accused in commission of the offence. 9. Even though in Ex.P.1, P.W.1 has not stated with regard to the blows by which injuries were caused to the deceased subsequent to the first flow, but before the Court below he stated that two more times the accused beat the deceased after causing the first injury. Even assuming for a moment that the accused caused three blows, the doctor in his evidence categorically stated that the head injury is possible if the second and third blows are caused on the same place where the first injury is caused. 10. The learned Sessions Judge, after evaluating the evidence, held as under: “………. and lend benefit in favour of the accused to say that the deceased received from the first blow the said head injury on his back occipital area, which is no doubt in the hands of the accused, which he intentionally dealt with by brining a iron rod a deadly weapon and the medical evidence clearly shows MO.1 can be the causative weapon and the injury with M.O.1 caused to the accused is sufficient in the ordinary course of nature to cause death, but for the fact that from this evidence it is difficult to infer any intention on the part of the accused to kill the deceased, but for intention to cause said bodily injury as was noted in Ex.P.9 postmortem report that resulted in his death as it was likely to cause death as with the intention dealt by accused, thereby falls only under Section 304 Part – I of the Indian Penal Code and not under Section 302 of the Indian Penal Code.” 11. The learned Sessions Judge appreciated the evidence and convicted the accused for the offence under Section 304 Part I I.P.C stating that the accused had no intention to cause death of the deceased, but he caused the injuries knowing that the same will cause death of the deceased. It is relevant to extract Section 304 I.P.C., which reads as under: “304. Punishment for culpable homicide not amounting to murder.-- Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.” 12. The two ingredients of Section 304 Part-I I.P.C are that (i) if the act by which the death is caused is done with the intention of causing death; (ii) causing such bodily injury as is likely to cause death. 13. The two ingredients of Section 304 Part-II I.P.C are that (i) if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death; (ii) to cause such bodily injury as is likely to cause death. 14. Keeping in view the above said ingredients, and the discussion made by the learned Sessions Judge in the impugned judgment and also by us as aforementioned, we are of the view that the offence will fall under Section 304 Part II I.P.C., but not under Section 304 Part I I.P.C., for the following reasons: 15. The occurrence is not premeditated and the weapon is also available in every house in the villages. There is ample evidence that the accused, after causing injury, ran away from the place of occurrence. Therefore, it can be said that the accused caused injuries with the knowledge that it is likely to cause death, but without any intention. Hence, the conviction recorded against the appellant is liable to be modified to the offence under Section 304 Part II I.P.C., and the sentence to be reduced to five years. 16. Accordingly, the conviction and sentence recorded by the Sessions Judge, Ongole vide judgment, dated 07.08.2007, in Sessions Case No.267 of 2006, against the appellant/accused for the offence punishable under Section 304 Part-I I.P.C. is hereby modified into one under Section 304 Part-II I.P.C. He is accordingly convicted and sentenced to undergo Rigorous Imprisonment for a period of five years. The remand period during the investigation, trial and after conviction shall be given set off under Section 428 Cr.P.C. 17. The Criminal Appeal is partly allowed to the extent indicated above. _________________ A.GOPAL REDDY, J Dt.25.07.2011 _________________ RAJA ELANGO, J va