IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT HON'BLE SRI JUSTICE K.C.BHANU AND HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRL.A.No.865 OF 2007 Date:24-12-2010 Between:- Thurkel Ratan Lal .. Appellant/Accused And The State of A.P., Rep. by its Public Prosecutor. .. Respondent JUDGMENT:- (per Hon’ble Sri Justice N.R.L.Nageswara Rao) The sole accused in Sessions Case No.327 of 2006 on the file of the II Additional Sessions Judge, (Fast Track Court-I), Khammam, who was convicted for an offence under Section 302 I.P.C. and sentenced to undergo imprisonment for life and also to pay a fine of Rs.100/- and in default, to undergo simple imprisonment for one month, is the appellant herein. 2. The case of the prosecution is that P.W.1 is the wife of the deceased Thurkel Babbulu. The accused Ratan Lal is the brother of the deceased. All of them resides at Indiranagar, Kothagudem and on 14-09-2004, at about 1.30 p.m., one Golu, aged about six years, youngest brother of the deceased, was playing with fire stick and threatened the daughter of the complainant that he would cause burns to her. Then, P.W.1 admonished him for which P.W.2 picked up a quarrel with P.W.1 and at that time, the deceased intervened to pasify his wife, P.W.1, and mother, P.W.2, and in the meanwhile, the accused came there and questioned the deceased for questioning his mother and beat him with hands saying that he would kill him and thereafter picked up a pestle from the house and beat on his head and forehead and caused severe bleeding injuries. The deceased was taken to Government Hospital, Kothagudem for treatment and on 14-09-2004 at 2 p.m., P.W.1 lodged a report, which was registered as case in Crime No.114 of 2004 under Section 307 I.P.C. Subsequently, the deceased died and the section of law was altered into Section 302 I.P.C. During the course of investigation, the statement of the witnesses was recorded. Inquest was held over the dead body of the deceased and panchanama of the deceased was conducted. The body was sent for post mortem examination. On 19-09-2004, the accused surrendered before the Circle Inspector of Police and gave a voluntary confessional statement and in pursuance of it, the pestle and the blood stained clothes of the accused were recovered. The accused was sent on remand. After completion of the investigation, the accused was charged for an offence under section 302 I.P.C. 3. The case was taken on file as P.R.C.No.129 of 2005 by the learned II Additional Judicial Magistrate of First Class, Kothagudem and committed to the Court of Sessions, Khammam and after the appearance of the accused, a charge under section 302 I.P.C was framed, read over and explained to him and he pleaded not guilty. 4. On behalf of the prosecution, P.Ws.1 to 13 were examined and marked Exs.P-1 to P-13 and M.Os.1 to 6. 5. After the evidence of the prosecution is over, the accused was examined under Section 313 Cr.P.C. and no defence evidence was adduced. 6. After considering the evidence on record, the learned Sessions Judge found the charge has been proved and accordingly convicted and sentenced him. Aggrieved by the said judgment, the present appeal is filed. 7. Heard Ms.Hema Jaiswal, learned Counsel for the appellant and also the learned Public Prosecutor. 8. The points that arise for consideration are: “1. Whether the prosecution has proved that the accused has committed the murder of the deceased? 2. Whether the conviction and sentence imposed by the learned Sessions Judge is legal and sustainable?” 9. POINTS:- In support of the prosecution case, P.W.1 deposed that the deceased was her husband and P.W.2 is her mother-in-law and that Shamlal is her brother-in-law. According to her, the accused is also the brother of the deceased. On the date of incident, at about 12 noon, P.W.3 ran after her daughter stating that he will brand her with a burning fire wood piece and she informed the same to P.W.2 and on that, there was quarrel between her and P.W.2. In the meanwhile, the accused and the deceased came there and they questioned her as to why she was picking up a quarrel with P.W.2. Then her husband went upon the accused and there was scuffle between both of them and in the meanwhile, the accused went inside the house, brought up pestle stating that he will kill him and beat him on his head on its back and her husband sustained injuries and collapsed. Thereafter, he was taken to the hospital and she gave the complaint-Ex.P-1 to the police. In cross examination, she stated that her husband and the accused used to live together in the same house amicably by the date of incident and that they were in a drunken state at the time of incident. She also further stated that her husband was suffering from fits and he used to fall down frequently due to the fits. She denied the suggestion that the complaint was lodged against the accused without any basis and that the accused has not beat her husband. The evidence of P.W.2, who is the mother of the accused and deceased, was completely in support of the evidence of P.W.1, all material aspects, the scuffle between the accused and the deceased and the deceased beaten by the accused. The evidence of P.W.3, who is a child witness, is about the quarrel with regard to the fire. He admitted the evidence of P.W.1 and subsequently, did not support most of the prosecution case and was partly declared as hostile. The evidence of P.W.4 is about taking photographs at the scene of offence. The evidence of P.W.5 is about treating the deceased when he was first brought to the hospital and intimating to the police after his death. The evidence of P.W.6 is about the presence at the time of inquest over the dead body of the deceased and also panchanama of the scene. The evidence of P.W.7 is that the accused gave a confessional statement in his presence and in pursuance of the confession, produced M.Os.1 and 2. The evidence of P.W.8 is that on the date of incident, there was a quarrel between the deceased and the accused and he went away after meeting the deceased. He came to know that the deceased was beaten by the accused. The evidence of P.W.9 is about the investigation done by him in this case. The evidence of P.W.10 is about examining the deceased and conducting post mortem examination to the dead body of the deceased and finding the following injuries and issuing the post mortem certificate-Ex.P-9: 1. Laceration 1 cm x ½ cm x skin deep above right eye brow. 2. Laceration 4 cm x 1 cm x bone deep on left parietal eminence of skull. 3. Laceration 5 cm x 1 cm x bone deep on right parietal area of skull. 4. Laceration 6 cm x 5 cm x bone deep on right occipetal area of skull. 5. Contusion of 5 cm x 5 cm right side of forehead. 6. Contusion of 5 cm x 5 cm left side of forehead. 7. Contusion on entire left anterior chest. Fractures of bones: 1. Fracture of ribs on left side from 5th to 8 ribs, with ecchymosis present at fracture site and soft tissue. 2. Fracture of right parietal bone, occipetal bone of skull with enxtensive ecchymosis and haemotoma present on the brain surfaces. 3. Fractures of anterior cranial fossa and posterior cranial fossa present with bleeding into the floors of brain cavities. The evidence of P.Ws.11 and 12 is also about part of the investigation done by them in this case. 10. The learned counsel for the appellant contends that the evidence on record does not support the prosecution version and the evidence of P.W.1 alone cannot be looked into. The fact remains that P.W.2 is no other than the mother of the accused and the deceased and she has also spoken about the incident freely and fairly and there is absolutely no need for her to speak against one son when the other son is attacked. Therefore, the evidence of P.W.2 is trustworthy and it also corroborates the evidence of P.W.1, who is the wife of the deceased. The fact that all of them are living together in the same house is also not in dispute. Therefore, the evidence of P.Ws.1 and 2 corroborates each other about the nature of incident. The fact that P.W.3 wanted to play up with fire on the child of P.W.1 cannot also be disputed from the evidence of P.Ws.1 and 2. Therefore, the presence of accused and the deceased at the house and thereafter finding fault with P.W.1 for picking up a quarrel with P.W.2 is also established beyond all reasonable doubt. As can be seen from the evidence on record, the dispute between the brothers took place because of the behaviour of the children and the consequences of P.W.1 questioning P.W.2. Evidently, from the evidence of P.W.1, both the brothers were living amicably and there were no disputes prior to the incident. Both the brothers are in a drunken state at the time of incident. Therefore, the evidence on record is clear that there is no prior premeditated intention to kill the deceased and during the quarrel, the accused went inside and brought pestle and beat the deceased. Therefore, it is not a case falling under the four corners of Section 302 I.P.C. and taking into consideration the nature of seven simple injuries and three grievous injuries on the vital parts and also the fact that the accused stated that he will kill the deceased and went inside and brought the pestle, it is quite clear that it is a case squarely falling under Section 304 Part I I.P.C. and accordingly, we hold that the guilt of the accused for the offence under Section 302 I.P.C. is not established but an offence under Section 304 Part I I.P.C. only is established. 11. In the result, the conviction and sentence recorded against the appellant/accused in the judgment dated 18-04-2007 in Sessions Case No.327 of 2006 on the file of II Additional Sessions Judge (Fast Track Court-I) at Khammam for the offence under Section 302 I.P.C. are set aside, instead the appellant/accused is found guilty of the offence punishable under Section 304 Part I I.P.C., accordingly, he is convicted and sentenced to undergo Rigorous Imprisonment for seven (7) years. The period of remand underwent by the appellant/accused during investigation, trial and after conviction shall be given set of under Section 428 Cr.P.C. 12. Accordingly, the Criminal Appeal is partly allowed. _______________ K.C.BHANU, J ____​________________________ N.R.L.NAGESWARA RAO, J 24th December 2010 AMD