HON'BLE SRI JUSTICE D.S.R.VARMA AND HON'BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No. 350 OF 2007 Dated: 12.11.2009 BETWEEN: Egurla Mallaiah .. Appellant And The State Through Public Prosecutor P.S.Choppadandi .. Respondent HON'BLE SRI JUSTICE D.S.R.VARMA AND HON'BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No. 350 OF 2007 JUDGMENT: (PER RKR,J) This Criminal appeal is directed against the judgment, dated 09.01.2007, passed by the IV Additional District and Sessions Judge, (Fast Track Court) Karimnagar in Sessions Case No.586 of 2006 wherein and whereunder the learned Judge convicted the appellant for the offence punishable under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.500/-. 2. The gravamen of the charge against the appellant-sole accused is that on 08.03.2006 at about 11.30 PM while he was beating his wife, his father i.e the deceased - Komaraiah intervened and chastised the appellant. Enraged by the same, the appellant took out a stick from the hands of the deceased and beat him on the right side of his head. The deceased sustained bleeding injury, and was admitted in the hospital and ultimately succumbed to the head injury while undergoing treatment in the hospital on 10.03.2007 at about 8.30 PM and thereby committed the murder of the deceased punishable under Section 302 IPC. 3. According to the prosecution, the appellant was in the habit of beating his wife Vijayalakshmi (LW.7) and as usual on 08.03.2006 at about 11.30 PM, while the appellant was beating his wife, his father intervened, then the appellant got offended and picked up a stick from the hands of his father and beat him. PWs.1, 2, 4 and 5 witnessed the incident. PW.1, who is no other than the brother of the appellant lodged a report in P.S.Ramadugu on 10.03.2006 which is registered as Crime No. 34 of 2006, initially under Section 324 IPC against the appellant. The Sub Inspector of Police –PW.10 investigated into the offence. The deceased was admitted in MGM Hospital, Warangal for treatment, unfortunately on 10.03.2006 at 08.30 am, the deceased succumbed to the injuries while undergoing treatment. Thereby, the section of law was altered to one under Section 302 IPC and ultimately the accused was put up for trial before the learned Sessions Judge for the charge under Section 302 IPC. 4. To substantiate the charge, the prosecution examined PWs.1 to 12 and marked Exs.P.1 to P.13 and MOs1 to 3 before the learned Additional Sessions Judge. Upon considering the entire material available on record, the learned Sessions Judge convicted the appellant for the offence punishable under Section 302 IPC and sentenced him to undergo rigorous imprisonment for life. The said judgment is assailed in this appeal by the appellant. 5. We have heard the learned counsel appearing for the appellant as well as the learned Public Prosecutor appearing for the respondent – State. 6. The learned counsel appearing for the appellant would submit that in the First Information Report, only PWs.1 and 4 were mentioned as eyewitnesses, whereas, in the inquest PWs.4 and 5 were only shown as eyewitnesses. Therefore, the version of the prosecution being inconsistent, as to who in fact, witnessed the incident, the appellant shall be given benefit of doubt. 7. On the other hand, the learned Public Prosecutor would submit that since the conviction is based on the evidence of close relatives of the appellant, and they being the natural witnesses, the judgment of the Court below needs no interference. 8. The purpose of conducting inquest is only to ascertain the cause of death and all the names of the eyewitnesses need not be mentioned in the inquest report. In the FIR also, the names of the eyewitnesses need not be mentioned and on that score alone, it is not possible to accept the contention that the version of eyewitnesses should be disbelieved. In the instant case, all the witnesses are related witnesses whose presence is quite natural. The scene of offence is nothing but the house of the appellant and absolutely there is no necessity for the eyewitnesses, who are close relatives i.e. PW.1 brother of the appellant, PW.2, wife of PW.1, PW.4, mother of the appellant, and PW.5, being close relative of the appellant to falsely implicate the appellant in this case. We see no force in the contention of the learned counsel appearing for the appellant that the learned trial Court wrongly came to the conclusion basing on the evidence placed before it. But, in our view, there is no alternative possibility of happening of the incident than which was spoken to by PW.1, 2, 4 and 5. 9. However, evidently, the appellant beat the deceased, who is his father with a stick in provocation caused by him in interfering while the appellant was beating his wife. The incident is not premeditated and the criminal act committed by the appellant is not voluntary. Therefore, the conviction could be in our view under Section 304, Part II IPC, but not under Section 302 IPC and the trial Court wrongly recorded the conviction under Section 302 IPC. Therefore, we alter the conviction from Section 302 IPC to one under Section 304 Part II IPC in this appeal. 10. With regard to the sentence, since absolutely there was no hostility between the appellant and the deceased, who is no other than the father and as the incident was not contemplated by the appellant ,we think it appropriate to award punishment of rigorous imprisonment of three years besides confirming the fine imposed by the learned trial Court. 11. In result, the criminal appeal is partly allowed. The conviction recorded by he IV Additional Sessions Judge ( Fast Tract Court), Krimnagar in S.C.No.586 of 2006 is altered to one under Section 304-II of IPC and the sentence is reduced to three years rigorous imprisonment besides confirming the fine imposed by he trial Court. D.S.R.VARMA,J R.KANTHA RAO,J Dated: 12.11.2009 Kvrm