THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.707 of 2004 JUDGMENT: This appeal is filed under Section 374 (2) of the Code of Criminal Procedure, 1973, against the judgment, dated 08.03.2004, passed in S.C.No.459 of 2000, on the file of the I Additional Sessions Judge, Krishna at Machilipatnam, whereunder and whereby the appellant/A.3 was found guilty of the offence punishable under Section 304 Part-I I.P.C., convicted therefor, and sentenced to undergo rigorous imprisonment for a period of six years and to pay a fine of Rs.2,000/-, in default of payment of fine, to undergo simple imprisonment for a further period of four months. 2. For better appreciation of facts, the parties hereinafter are referred as arrayed in the lower Court. 3. The brief facts that are necessary for the disposal of the present appeal may be stated as follows: A.3 had dry land near the house of P.W.1 and in the said land, he raised green gram crop. The buffaloe of P.W.1 used to enter into the said land of A.3 and graze the green gram crop, as there was no fencing to the said land. On 21.08.2000 at 7.00 a.m., the buffaloe of P.W.1 entered into the land of A.3 and grazed the green gram crop, the same was notice by A.3 and he got angry. Then, he went to the house of P.W.1 at about 8.00 a.m., and warned him and in that connection a quarrel ensued between them. In that quarrel, P.W.1 was supported by Mesupam Benzmen (hereinafter referred to as ‘the deceased’) and P.Ws.2 and 3 and others, who are closely related to P.W.1. When the said incident was learnt by A.1, A.2 and A.4, they armed with deadly weapons i.e., chutney pounder and sticks, attacked P.Ws.1 to 3 and another and beat them indiscriminately causing bleeding injuries. On seeing that attack, the deceased intervened with an intention to suppress the galata. The accused presumed that the deceased was the elder of family of P.Ws.1 to 3, and A.3 attacked the deceased with a stick on his head with an intention to kill him and caused severe bleeding injury to his head. On the same day i.e., on 21.08.2000 at about 11.30 hours, the deceased, P.Ws.1 to 3 and another went to the Police Station of Vissannapet, where P.W.13-the Sub Inspector of Police, Vissannapeta recorded the statement of the deceased and registered the same as a case in Crime No.53 of 2000 for the offence under Section 307 r/w 34 I.P.C. During the course of investigation, P.W.13 visited the scene of offence, got prepared the scene of offence observation report and seized the incriminating materials. He also sent the deceased, P.Ws.1 to 3 and another to Government Hospital, Tiruvuru. Thereafter, the deceased was referred to University General Hospital, Vijayawada, where the deceased succumbed to injuries on 23.08.2000 at 9.10 hours while undergoing treatment. On receipt of death intimation, P.W.13 altered Section of law from 307 read with 34 I.P.C. to Sections 302 and 307 r/w 34 I.P.C. and sent the altered express F.I.Rs. to all the concerned officers besides original F.I.R to the court. The Sub Divisional Police Officer, Nuzvid - P.W.15 took up investigation from P.W.13 and conducted inquest over the dead body of the deceased. Thereafter, the dead body was subjected to postmortem examination. P.W.14-the Professor, Department of Forensic Medicine, U.G.H, Vijayawada conducted autopsy over the dead body of the deceased and opined that the deceased died due to head injury. P.W.16 - the Inspector of Police, Tiruvuru Circle, who took up further investigation, examined the witnesses, arrested the accused, and after completion of investigation, filed charge sheet. 4. The charges leveled against the accused are as follows: “FIRSTLY: That you, A.3 Parasa Subbaiah @ Subbulu, on the 21st day of August, 2000 at about 8.00 a.m., at the house of L.W.1 Mesupam Dasu in Harijanawada of Korlamanda Village, did commit murder by intentionally (or knowingly) causing the death of the deceased Mesupam Benzmen, S/o.Ratham by beating on his head with a stick by you when he tried to suppress the dispute in between all of you and the said L.W.1, and thereby committed an offence punishable under Sec. 302 IPC and within the cognizance of Court of Session. SECONDLY:- That you, A.1, A.2 and A.4, on the aforesaid date, time and place, in prosecution of the common intention of all of you in killing the deceased, one of the members of you i.e., A.3 killed the deceased by beating him with stick on the head, and you are thereby under Section 34 IPC guilty of the said offence, an offence punishable under Section 302 IPC and within the cognizance of Court of Session. THIRDLY:- That you, A.1 to A.4, on the aforesaid date, time and place, in prosecution of the common intention of all of you attacked on L.Ws.1 to 4 and caused bleeding injuries on them with an intention to kill them and if by that act you had caused the death of L.Ws.1 to 4 you would have been guilty of murder, and thereby committed an offence punishable under Section 307 r/w 34 IPC, and within the cognizance of Court of Session.” 5 . When the said chares were read over and explained to the accused, they pleaded not guilty and claimed to be tried. 6. To substantiate its case, on behalf of the prosecution, P.Ws.1 to 16 were examined and Exs.P.1 to P.20 were marked, besides the case properties M.Os.1 to 7. On behalf of the defence, D.W.1 was examined and Exs.D.1 to D.6 were marked. 7. The trial Court, upon consideration of the evidence available on record, while acquitting A.1, A.2 and A.4 of the charges leveled against them, found the appellant/A.3 guilty of the offence punishable under Section 304 Part I IPC and accordingly convicted and sentenced him as stated supra. Challenging the conviction and sentence, the appellant/A.3 filed this appeal. 8. The learned counsel appearing for the appellant contended that P.Ws.1 to 3 are all related and interested persons and therefore, it is not safe to place an implicit reliance on their evidence; that according to the case of the prosecution, only one injury was sustained by the deceased, whereas the postmortem report shows that the deceased sustained three wounds, but the prosecution has not explained as to how the deceased sustained the other injuries; that there is a variation in regard to the weapon allegedly used by the appellant and others; that the appellant also sustained injuries at the hands of prosecution party, but the police did not give explanation to the injuries sustained by him; thereby suppressing the origin and genesis of occurrence; that the mediators report has not been proved and that Exs.D.1 to D.4- material contradictions would belie the case of the prosecution, and therefore, it is not safe to place any reliance on the prosecution evidence to base the conviction. Hence, he prays to set aside the conviction and sentence. 9. On the other hand, the learned counsel representing the Public Prosecutor submitted that there is absolutely no reason for P.Ws.1 to 4 to speak false against A.3; that their evidence is very clear that it is A.3, who caused injury on the head of the deceased; that the medical evidence is completely in corroboration with the ocular testimony and that after elaborate consideration of the evidence on record, the trial Court rightly found the appellant guilty and there are no grounds to interfere with the same. 10. P.W.15 is the Sub Inspector of Police, who conducted inquest on the dead body of the deceased. Ex.P.5 is the inquest report. He stated that the mediators have opined that the deceased died due to head injury. 11. P.W.14 is the doctor, who conducted autopsy over the dead body of the deceased on 24.08.2000 and found an abrasion on the left side forehead measuring 3 c.m x 1.5 cm., fissured fracture on the left parietal region extending towards bone passing through middle cranial fossa measuring 11.5 cm and diffuse sub-arachnoid hemorrhage. He issued Ex.P.20 postmortem certificate. His evidence remained unchallenged. Even the accused did not deny or dispute with regard to the cause of death of the deceased as spoken to by the doctor. 12. Now it has to be seen whether A.3 is the assailant of the deceased or not. 13. P.Ws.1 to 3 are closely related to the deceased. That does not mean that their evidence has to be discarded on the ground of relationship. On that aspect, only thing to be considered is that their evidence has to be scrutinized cautiously and carefully. On this aspect, it is pertinent to refer to the judgment of the Hon’ble Supreme Court reported in DARYA SINGH v. STATE OF PUNJAB[1], wherein it was held as under: “There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal Courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully. But a person may be interested in the victim, being his relation or otherwise, and may not necessarily be hostile to the accused. In that case, the fact that the witness was related to the victim or was his friend, may not necessarily introduce any infirmity in his evidence. But where the witness is a close relation of the victim and is shown to share the victim's hostility to his assailant, that naturally makes it necessary for the criminal Courts to examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it. In dealing with such evidence, Courts naturally begin with the enquiry as to whether the said witnesses were chance-witnesses or whether they were really present on the scene of the offence. If the offence has taken place, as in the present case, in front of the house of the victim, the fact that on hearing his shouts, his relations rushed out of the house cannot be ruled out as being improbable, and so, the presence of the three eye-witnesses cannot be properly characterised as unlikely. If the criminal court is satisfied that the witness who is related to the victim was not a chance-witness, then his evidence has to be examined from the point of view of probabilities and the account given by him as to the assault has to be carefully scrutinised. In doing so, it may be relevant to remember that though the witness is hostile to the assailant, it is not likely that he would deliberately omit to name the real assailant and substitute in his place the name of the enemy of the family out of malice. The desire to punish the victim would be so powerful in his mind that he would unhesitatingly name the real assailant and would not think/of substituting in his place the enemy of the family though he was not concerned with the assault. It is not improbable that in giving evidence, such a witness may name the real assailant and may add other persons out of malice and enmity and that, is a factor which has to be borne in mind in appreciating the evidence of interested witnesses. On principle, however, it is difficult to accept the pleas that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars. We do not think it would be possible to hold that such witnesses are no better than accomplices and that their evidence, as a matter law, must receive corroboration before it is accepted. That is not to say that the evidence of such witnesses should be accepted light-heartedly without very close and careful examination and so, we cannot accept Mr. Bhasin's argument that the High Court committed an error of law in accepting the evidence of the three eye-witnesses without corroboration.” Bearing the above principles in mind, it has to be seen whether the presence of P.Ws.1 to 4 at the time of incident is acceptable and whether there is anything improbable in their evidence and whether accused No.3 is the assailant of the deceased. 14. The evidence of P.W.1 would go to show that when he came to the house on the date of the incident, A.1 armed with chutney pounder and other accused armed with sticks came to his house and abused him in filthy language; then the deceased came to the spot and stated that if the buffaloe of P.W.1 grazed the green gram crop of A.3, they will pay the fine as ordered by the elders; on that A.3 uttered that they came there in order to see their (prosecution witnesses) end and caused injury on the head of the deceased, as a result, the deceased fell down; that they also caused injuries to some of the prosecution witnesses; that the prosecution witnesses and the deceased went to Vissannapet Police Station and the police recorded the statement of the deceased. It is not in dispute that A.1 and A.3 also sustained injuries during the course of same transaction. 15. The evidence of P.W.13-Sub Inspector of Police would go to show that when he was present in the police station, the deceased and some others came there on 21.08.2000 at about 11.30 a.m. and he recorded the statement of the deceased under Ex.P.14. It was suggested that Ex.P.14 was fabricated at the instance of the deceased to suit their case after due consultations and deliberations, but the same was denied. Nothing has been elicited as to why he (P.W.13) has to fabricate the statement like Ex.P.14. 16. Ex.P.14 reads as follows: “I belongs to Korlamanda Village, Vissannapet Mandal. I am living by doing coolie works. Today i.e., on 21.08.2000 morning at about 8.00 a.m., when myself and my son James standing out side of our house, Parasa Swamy, Parasa Srinu, Parasa Subbaiah and Parasa Krishna came there with sticks and pestle, so saying that the she/buffelloe of Mesupam Dasu grazed in their lands beat me on the head with stick, which is in his land and I sustained big injury on my head and Parasa Swamy, Parasa Srinu and Parasa Krishna beat indiscriminately Mesupam Dasu, Mesupam Ramesh, Mesupam Vijayarao and Mesupam James who are in our house with hands, sticks and Pestle which are in their hands and they also received injuries. The above stated culprits came upon us with an intention to kill us and beat us. At the time of incident, Thadikimalla Venkateswararao, Banka Ramana, Sadu Satyam and the neighbours came there, they ran away, we, who received injuries were brought to police station. When police examined me, I stated the said facts read over to me and found to be correct.” A perusal of the above statement goes to show that all the accused beat the deceased with sticks and pestle, as a result, the deceased sustained injury on the head. Whereas, the evidence of P.Ws.1 to 3 would go to show that the head injury was caused by A.3, as a result, the deceased fell down. 17. From the evidence of P.Ws.1 to 3, it is very clear that it is A.3, who caused injury on the head of the deceased. Simply because they are closely related to the deceased, their evidence cannot be discarded. Statements of witnesses, which inspires confidence, can be accepted and relied upon. If really they wanted to perjure themselves they would have stated that all the accused beat the deceased, but they did not testify against the other accused. 18. Insofar as the attack on the deceased is concerned, their evidence is clear that it is A.3, who beat the deceased on the head. If they want to involve the other accused also, they would have stated that all the accused caused injuries to the deceased. In view of the same, the Court is of the opinion that P.Ws.1 to 4 are witnesses of truth and they have testified as to what transpired on the date of the incident. Perhaps that is the reason why the trial Court rightly placed an implicit reliance on the evidence of P.Ws.1 to 3. The presence of P.Ws.1 to 3 at the time of incident cannot be doubted because P.W.1 sustained a lacerated injury of about 1cm x ¼ cm deep with contusion of about 3cm x 2cm on right parietal region of scalp; P.W.2 sustained an abrasion of about 4 cm x 3 cm on left scapular region; and P.W.3 sustained lacerated injury of about 10 cms x 1 cm bone deep on parietal region of scalp mid-line. P.W.12, the doctor, who examined P.Ws.1 to 3 on 21.08.2000 at 12.45 noon, issued wound certificates under Exs.P.10 to P.12 respectively. It is not the case of the accused that P.Ws.1 to 3 sustained the above said injuries at a different place, in different manner and at the hands of different persons and transaction. Therefore, the presence of P.Ws.1 to 3 at the time of incident has been established. Further more their presence at the place of incident is quite probable because the incident is alleged to have taken place near the house of P.W.5. As seen from Ex.P.17-rough sketch of scene of offence, the incident has taken place in front of the house of P.W.5. The house of P.W.5 is located in the middle of houses of P.Ws.1 and 2. Therefore, it is quite possible and probable for P.Ws.1 and 2 to witness the incident. The incident is alleged to have been taken place at about 8.00 a.m. Therefore, there is sufficient light available at that time to identify the assailant of the deceased by the eyewitness to the incident. After lengthy cross-examination, nothing has been elicited to discredit the testimony of P.Ws.1 to 3. So their evidence is convincing, trustworthy and reliable. 19. One of the contentions raised by the learned counsel for the appellant/A.3 is that A.1 to A.3 also sustained injuries in the same transaction, as they were beaten by the prosecution witnesses. The prosecution has not suppressed about the accused sustaining the injuries. As a matter of fact, the prosecution witnesses stated that A.1 to A.3 sustained injuries during the course of same attack, but they have not stated as to how A.1 to A.3 sustained the injuries. Perhaps may be for the reason that they would not have witnessed as to how A.1 to A.3 sustained injuries. If the prosecution witnesses went to the house of A.3 and attacked A.1 to A.4, who are none other than brothers, it can be said that the prosecution witnesses are the aggressors. But here is a case where the accused went to the house of P.W.1, abused him in filthy language and attacked him. Therefore, in such circumstance, the right of private defence would not be available to the accused, much less to the appellant/Accused No.3. Therefore, it is clear that all the accused went to the house of P.W.1, questioned him, then a quarrel ensued between the accused and prosecution witnesses, the accused beat them and to retaliate the attack, the prosecution witnesses might have caused injuries to A.1 to A.3. Therefore, in such circumstances, the aggressor cannot claim a private defence. That is the reason why the trial Court has not accepted the plea of right of private defence set up by the accused. 20. It is not in dispute that the prosecution witnesses and the accused are closely related. The dispute is in between P.W.1 and the appellant. When the accused were beating P.Ws.1 to 3, the deceased interfered. Then A.3 allegedly beat the deceased with stick on his head, which proved to be fatal. A.3 has no prior enmity with the deceased, and that he has no animus to cause injury to the deceased. The fight was sudden and A.3 has not taken any undue advantage of the situation. Therefore, the case of A.3 falls under Exception 4 to Section 300 I.P.C., which provides that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner. There were no disputes between A.3 and the deceased. The deceased intervened in the fight between the accused and P.W.1. In that fight, A.3 beat the deceased on his head with the stick. 21. No doubt, there were three injuries on the head of the deceased, but the same are not explained by the prosecution. As seen from the evidence of P.W.14-Doctor, the injuries were on left side of the head of the deceased. Considering the situs of injuries, the possibility of causing three injuries with one blow cannot be ruled out. It is not the case of the doctor that for causing the three injuries, three different blows were given. Doctor did not say that the injuries are independent of each other. Considering the fact that there are three injuries on the same situs of the body of the deceased, they might have been caused with a single blow. In these circumstances, non-explanation of two other injuries on the deceased is not fatal to the case of prosecution. 22. Considering all the above aspects, the trial Court rightly found the appellant/A.3 guilty of the offence punishable under Section 304 Part-I I.P.C., and therefore, there are no grounds to interfere with the conviction recorded by the trial Court. 23. With regard to sentence, it is submitted by the learned counsel for the appellant that A.3 has old parents, got three daughters and son, out of them he has yet to perform the marriages of his two daughters, his son was aged about 10 years, and it is the first offence committed by him. Therefore, having regard to the facts and circumstances of the case, a lenient view can be taken with regard to sentence of imprisonment. 24. In the result, the conviction recorded against the appellant/A.3 vide judgment dated 08.03.2004 in S.C.No.459 of 2000 on the file of I Additional Sessions Judge, Krishna at Machilipatnam is confirmed, but sentence of rigorous imprisonment of six years imposed against him is reduced to three years while maintaining the fine amount with default clause. Period of remand, if any, undergone by the appellant/A.3 during the course of investigation, trial and after conviction, shall be given set off under Section 428 Cr.P.C. 25. With the above modification, the Criminal Appeal is dismissed. K.C.BHANU, J Date: 30.11.2009 va. [1] AIR 1965 SUPREME COURT 328