HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.1244 of 2003 JUDGMENT: This Criminal Appeal is directed against the conviction and sentence recorded in S.C.No.168 of 2003 by the learned IV Addl. Sessions Judge, Warangal, vide judgment dated 21.11.2003, whereby and whereunder the appellant herein-sole accused was convicted under Section 235(2) Cr.P.C. for the offences punishable under Sections 304 Part I and 324 IPC and, accordingly, sentenced to suffer rigorous imprisonment for a period of ten years and also to pay a fine of Rs.500/-, in default, to suffer simple imprisonment for fifteen days, for the offence punishable under Section 304 Part I IPC and he was further sentenced to suffer rigorous imprisonment for a period of six months and also to pay a fine of Rs.500/-, in default, to suffer simple imprisonment for fifteen days, for the offence punishable under Section 324 IPC. 2. The case of the prosecution, in brief, is as under: i) The accused is a resident of Wardhannapet. Bakkatatla Isthari (hereinafter called as ‘ the deceased’) was also a resident of the same Village and P.Ws. 1, 2 and 4 are his sons and their predominant living is by rearing sheep and goats. P.W.3 has also a herd of sheep in the same Village. The house of the accused is situated opposite to the house of one Chanda Illaiah. The width of the lane in between these houses is about 5 yards. The shepherds in the said Village usually take their herds through the lane to pens. ii) While so, as usual on 13.12.2002 at about 8.00 p.m. P.Ws.1, 2 and 4 were bringing the sheep to their house through the lane in front of the house of the accused. When they reached the house of the accused, another herd of sheep belonged to P.W.3 came in opposite direction. To accommodate the herd of sheep of P.W.3, P.Ws.1, 2 and 4 made their sheep to a halt in front of the house of the accused. On that, the accused got annoyed and questioned as to why they made their sheep to stop in front of his house. At that juncture, the deceased was at the house of one Bakkatatla Komuraiah and on hearing the same, he came to the house of the accused and tried to pacify the matter. But however, the accused got wild and took a stick and beat twice on the head of the deceased causing bleeding injuries. Due to that blows, the deceased fell down unconscious. When P.W.2 interfered to save his father, the accused also gave him a blow with the stick causing an injury on his head. On hearing the cries, the wife of the deceased and P.W.6 a neighbour in that locality went there and P.W.6 scolded the accused. Later on, they took the deceased to the hospital of P.W.11, on whose advise, the deceased was shifted to M.G.M. Hospital at Warangal, where while undergoing treatment, the deceased died at about 11.45 p.m. on the same day. iii) Basing on Ex.P.1 complaint lodged by P.W.1, P.W.14 the Sub Inspector of Police, Wardhannapeta P.S., registered Crime No.189 of 2002 against the accused. After completion of investigation and receiving necessary reports, the police laid charge sheet against the accused before the competent Criminal Court for the offences punishable under Sections 302 and 324 IPC. The plea of the accused was of total denial. 3. In order to prove the guilt of the accused, the prosecution examined PWs. 1 to 15 and got marked Exs.P.1 to P.22 and M.Os. 1 to 7. On behalf of the defence, no oral evidence was adduced. But, Exs.D.1 and D.2-161 Cr.P.C. statements of P.Ws.3 and 4 respectively, were marked. 4. After hearing the arguments on both sides and after evaluating both oral and documentary evidence, the learned Sessions Judge convicted and sentenced the accused as stated supra. Aggrieved thereby, the accused filed this Criminal Appeal. 5. Heard learned counsel for the appellant-accused and learned Public Prosecutor for the State. 6. There are four witnesses to the occurrence, they are P.Ws. 1 to 4. Out of them, P.Ws.1, 2 and 4 are sons of the deceased and P.W.2 is also an injured and P.W.3 is an independent witness. The said witnesses cogently deposed before the Court as to the manner in which the occurrence took place and as to how the accused caused injuries to the deceased as well as P.W.2. There is no material discrepancy in the said evidence adduced by the prosecution. 7. Learned counsel for the appellant-accused has submitted that P.W.4 cannot be termed as an eye witness to the occurrence and in that regard he relied on Ex.D.2 which was marked through P.W.4. This Court perused the entire record. P.W.4 is not a direct eye witness to the attack on the deceased, but he has witnessed the subsequent events. The learned counsel also submitted that as per the record and also the evidence, the accused caused two injuries on the head of the deceased, whereas the medical evidence is contrary to the same. This Court is of the view that by attacking on the head simultaneously, there is a possibility of one injury. Hence, that cannot be a ground for acquitting the accused. 8. After arguing for some time, the learned counsel for the appellant-accused submitted, while admitting the entire case of the prosecution, that conviction under Section 304 Part I is not sustainable in law, in view of the facts and circumstances of the present case. 9. This Court also scrutinized the evidence adduced by the prosecution and from the case of the prosecution and the evidence, the following things are evident: i. The occurrence took place in a spur of moment. ii. The appellant-accused has no intention to cause the death of the deceased. iii. The appellant-accused has not pre- determined or planned to commit the crime. iv. The weapon used in the crime is also not a dangerous weapon. v. The appellant-accused was not in possession of the said weapon even few seconds prior to the occurrence. vi. There is no prior enmity between the accused and the deceased. vii. When the deceased came to the scene and tried to pacify the matter, the accused took a stick and beat twice on the head of the deceased. 10. In the above said circumstances, it is very clear that the offence committed by the accused cannot be an offence falling under Section 304 Part I IPC. But, the entire occurrence on the basis of the evidence adduced by the prosecution clearly establishes an offence falling under Section 304 Part II IPC. Therefore, this Court is of the view that the appellant-accused is liable to be convicted for the offence punishable under Section 304 Part II IPC instead of Section 304 Part I IPC. 11. Accordingly, the appellant-accused is convicted for the offence punishable under Section 304 Part II IPC instead of Section 304 Part I IPC, but however, the sentence of imprisonment for a period of ten years imposed by the trial Court on the appellant is reduced to four (4) years and the fine amount shall be maintained. The conviction and sentence imposed by the trial Court on the appellant for the offence punishable under Section 324 IPC shall stand confirmed. Both the sentences shall run concurrently and the remand period if any undergone by the appellant shall be given set off under Section 428 Cr.P.C. The appellant-accused is directed to surrender before the trial Court within three (3) months from the date of receipt of the order to serve the remaining sentence. On his failure, the trial Court is at liberty to issue warrant to secure the appellant- accused. 12. In the result, the Criminal Appeal is allowed in part. __________________ RAJA ELANGO, J 10th November, 2010 cbs HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.1244 of 2003 November, 2010 cbs HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.1244 of 2003 Dated: -11-2010 BETWEEN: Yerragolla Komuraiah … Appellant/ Accused AND The State of A.P., rep. by the Public Prosecutor, High Court of A.P., Hyderabad. …Respondent THIS COURT MADE THE FOLLOWING: