THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No. 45 of 2003. JUDGEMENT: This appeal arises out of the Judgement dt. 31.12.2002 in S.C.No. 331 of 2000 passed by the learned VI Additional Sessions Judge, Krishna at Machilipatnam whereby the appellants (A.1 and A.3) were convicted for the offence under Section 304 r/w 34 IPC and sentenced to suffer RI for ten years and also to pay a fine of Rs. 500/- each, in default to suffer imprisonment for three months. The case of the prosecution in brief is that the deceased Danduboyina Koteshwar Rao and the accused belong to Malleswaram village of Bantumilli Mandal, Krishna District. Both parties belong to two different political parties in the village. The house of the deceased is situated opposite to the house of A.1 (1st appellant). It is stated that there is a boundary dispute between the deceased and A.1 and that on 10.9.1999 at about 10 p.m. while the deceased was talking toPw.3 (Senti Venkanna) in front of his house, the appellants and the other accused came arming with stout sticks and attacked the deceased. A.1 beat the deceased with a stout stick on his head and pocked on his abdomen and A.3 beat him with a stout stick on the right leg and when Pw.1, who is the mother-in-law of the deceased intervened, A.1 also beat Pw.1 with a stout stick and A.2, A.4 and A.5 also beat the deceased with hands and kicked him indiscriminately. The deceased and Pw.1 received injuries and they were shifted to the Government Headquarters hospital, Machilipatnam. Pw.9 (Ch.Bhaskara Rao) who was the Head Constable of Bandar Taluq police station received intimation from the hospital and then rushed to the hospital and recorded the statement of the deceased and forwarded the same to the police station, Bantumilli on the point of jurisdiction. Pw.7 who was the ASI of Bantumilli Police Station on receiving the said statement of the deceased, registered a case in Cr.No. 77 of 1999 under Section 324 r/w 34 IPC. He conducted most part of the investigation and later Pw.8 conducted remaining part of investigation and verified the investigation done by Pw.7 and filed charge sheet. Before the trial court, in order to establish the guilt of the accused for the offence punishable under Section 302 r/w 34 IPC, the prosecution in all examined Pws 1 to 10 and marked Exs: P.1 to P.11. No witnesses were examined on behalf of the accused but Ex:D.1 was marked on their behalf. The learned VI Additional Sessions Judge, on a consideration of the entire evidence available on record, convicted and sentenced the appellants (A.1 and A.3) as stated above, while acquitting A.2, A.4 and A.5. I have heard the learned Counsel appearing for the appellants and also the learned Public Prosecutor representing the State. The learned Counsel for the appellants would submit that the deceased died about 45 days after receiving injuries and the medical evidence indicates that the cause of the death of the deceased was due to septicaemia (infection) and therefore the injuries cannot be said to be the direct cause of death of the deceased. The learned Counsel for the appellant would further submit that there were General Assembly Elections to the Constituencies of Bantumilli and Maheswaram on 11.9.1999 and that on 10.9.1999 at about 10 p.m. a quarrel took place between the deceased and A.1 on the metal road and during the course of quarrel, A.1 pushed the deceased and consequently the deceased fell on the hook of the tractor-trailer stationed there and sustained injury and that the prosecution falsely created the scene of offence as in front of the house of the deceased. The learned Counsel would further submit that Pw.3, a neighbour and independent witness did not state about the presence of A.3 at the time of offence and therefore the remaining evidence being that of the interested witnesses, the trial court ought to given benefit of doubt to A.3. On the other hand, the learned Public Prosecutor representing the State would submit that Pw.9 recorded the statement of the deceased at Machilipatnam Headquarters hospital, which shows the involvement of A.1 and A.3 (the appellants) and there is also the evidence of Pws 1, 2 and 4 and that though Pw.3 did not speak about the presence of A.3 at the time of offence, the entire evidence coupled with medical evidence clinchingly supports the case of the prosecution, the trial court rightly convicted and sentenced the appellants and therefore the Judgment of the trial court need not be interfered with. Now the point that arises for consideration is whether the conviction and sentence passed by the learned VII Additional Sessions Judge, Krishna at Machilipatnam against the appellants can be sustained or the same is liable to be set aside or modified. After the incident, the deceased (Danduboyina Koteshwar Rao) was admitted in Government Headquarters hospital, Machilipatnam and that on receiving intimation from the hospital, Pw.9 rushed to the hospital and recorded the statement of the deceased which is marked as Ex:P.7. In Ex:P.7, the deceased had categorically stated that A.1 beat him with a stout stick on his head and pocked with the same on his abdomen. He also stated that A.3 beat him with a stout stick on his right leg and that the other accused beat him with hands. Since the deceased died 45 days after the incident, his statement is admissible in evidence under Section 32(1) of the Indian Evidence Act and the court can rely on the said statement. This apart, Pw.1 who is the mother, Pw.2 who is the wife and Pw.3 who is the daughter of the deceased have categorically spoken about the fact of the appellants attacking the deceased with stout sticks and their version is similar to that of the statement of the deceased in Ex:P.7. Pw.3 for the reasons best known to him did not speak about the presence of A.3 at the time of incident. But on that score alone, it is not possible to hold that A.3 was not present at the time of incident and did not participate in the commission of offence. Pw.5, the doctor who examined Pw.1 noticed the following injuries: i) 8x5 cm red coloured contusion over lateral aspect of upper 1/3rd of left leg tender. ii) 3x3 cm red coloured contusion over lateral aspect of lower 1/3rd of left leg tender. iii) 2x2 cm red coloured contusion over lateral aspect of upper 1/3rd of left thigh tender. Since, Pw.1 being injured witness much credibility can be given to her evidence. As regard the scene of offence, it is only the defence theory that on 10.9.1999 a quarrel took place on the metal road between A.1 and the deceased and during the course of quarrel, A.1 pushed the deceased and the deceased fell on the hook of the tractor-trailer stationed there. Nowhere the prosecution refers to the said dispute. The case of the prosecution is consistent on the point that the offence took place in the lane in the front of the house of the deceased. None of the witnesses stated about any quarrel between the deceased and A.1 on the metal road. The accused did not adduce any evidence to prove the fact that a quarrel took place on the metal road on 10.9.1999. Therefore, there is absolutely no material to hold that the scene of offence is different than the one stated by the prosecution. Pw.6 who conducted post-mortem over the dead body of the deceased stated in his evidence that he found ulcer over the right thigh and bed sore over the scam right lower limb, fracture of right tibia upper 1/3rd and middle 1/3rd and fracture of right fibula middle and lower 1/3rd with haematoma surroundings and that the injuries are ante-mortem in nature. He also stated that he found bluish discolouration of skin over anterior abdominal wall extended from right to left 11 ½ x 6 cm length and a healed wound of scalp 1 ½ x 1 ½ cm over occipital area. He opined that the said injuries found on the person of the deceased are possible with stout sticks. The injuries as found by Pw.6 on the body of the deceased correspond with the ocular version of Pws 1 to 4, though there may be some minor variations. It is true that the deceased died 45 days after he received injuries and thereafter basing on the report lodged by Pw.2, the section of law was altered from 324 r/w 34 IPC to 302 r/w 34 IPC. The contention of the learned Counsel for the appellants that the death of the deceased was not due to the injuries but only due to the septicaemia cannot be countenanced. Admittedly, the deceased was provided with treatment in Government Hospital and in spite of the treatment, if septicaemia developed, it is not possible to hold that the injuries are not the cause for the death of the deceased. Septicaemia may be one of the factors, which lead to the death of the deceased but the basic cause for his death was the injuries caused to him by the appellants during the course of attack on 10.9.1999. For all the above reasons, I do not find any merit in the contention of the learned Counsel for the appellants that the conviction and sentence recorded against the appellants are not sustainable. However, the appellants caused fractures to the deceased by beating him with stout sticks and one of the injuries was on the head of the deceased, which was attributed to A.1. On account of boundary dispute which is trivial in nature, the appellants caused grievous injuries to the deceased with stout sticks which are deadly weapons. But on a consideration of the facts and circumstances of the case, it would not appear that such injuries were caused either with an intention to cause death or causing such bodily injury as is likely to cause death or with knowledge that the injuries are likely to cause death. Therefore, the conviction recorded by the trial court for the offence under Section 304 r/w 34 IPC is not proper and the same is modified to one under Section 326 r/w 34 IPC for voluntarily causing grievous hurt by dangerous weapons. Since, the incident took place on 10.9.1999 i.e. more than a decade ago, the sentence of 10 years passed by the trial court in the facts and circumstances of the case appears to be severe and deserves to be reduced. Accordingly, the appellants are sentenced to suffer RI for three years each for the offence under Section 326 r/w 34 IPC while the sentence of fine imposed by the trial court is maintained. With the modification in the conviction and sentence, as stated above, the appeal is partly allowed. ______________________ R.KANTHA RAO,J 29.07.2010. KRB. THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No. 45 of 2003. JUDGEMENT: Dt. 29.07.2010.