IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THE HON'BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.869 of 2002 Date:31.12.2010 Between: Mekala Papaiah .....Appellant AND: The State of A.P., rep. by its PP.., High Court of A.P., Hyderabad. ....RESPONDENT THE HON'BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.869 of 2002 JUDGMENT: This is an appeal filed under Section 374 (2) Cr.P.C against the conviction and sentence passed by the Principal Sessions Judge, Nalgonda in Sessions Case No.574 of 2000 on 31.05.2002. According to the prosecution, A-1 and P.W.3 Karingula Narsimha purchased the land jointly from P.W.10 Tirandasu Narayana. On 7.4.2000 at about 4.00 p.m., when they were demarcating the land, A-1 picked up a quarrel with the deceased Kotaiah and beat with a stick on the head and caused bleeding injuries, whereas, A-2 and A-3 caught hold of the deceased and fisted. The deceased was also taken to the police station and lodged a complaint before the police and the police registered a case in Crime No.12/2000 under Section 324 read with 34 IPC and investigated the same. During the course of investigation, the statements of P.Ws.1,4 and 10 were recorded and the injured was sent to Hospital. The panchanama of the scene was conducted and while undergoing treatment, the deceased died on 8.4.2002 at 5.00 a.m. Subsequently, the Section of law was altered in one under Section 302 read with 34 IPC. The inquest was held over the dead body of the deceased and it was sent for post-mortem examination. The investigation disclosed that the deceased, A-1 and P.W.3 purchased Ac.2.00 of land jointly from P.W.10 and they wanted to separate the property. On 7.4.2000, when they went to the field for partition, A-1 picked up a quarrel and beat the deceased, whereas, A-2 and A-3 caught hold of the deceased and beat him. On 30.04.2000, A-1 to A-3 were arrested and they gave voluntary confessions, and in pursuance of the confession A-4, a stick was seized. Therefore, the accused were charged for the offence under Section 302 read with 34 IPC. On behalf of the prosecution, P.Ws.1 to 14 were examined and Exs.P-1 to P-11 and M.O.1 were marked. No evidence was adduced on behalf of the accused. The learned Sessions Judge has framed the following points for consideration: 1. Whether the prosecution has proved that the accused beat the deceased and caused his death? 2. Whether the prosecution has established beyond reasonable doubt the guilt of accused for the offence for which they stand charged? Taking into consideration of both oral and documentary evidence, the Sessions Judge has found A-1 guilty for the offence under Section 304 Part-II IPC. Aggrieved by the said conviction and sentence, the present appeal is filed. Now the point that arises for consideration is whether the prosecution could be able to establish the offence under Section 304 Part-II IPC against the appellant beyond reasonable doubt. According to the prosecution, A-1 and P.W.3 purchased the land of Ac.2.00 jointly from P.W.10 and that on 7.4.2000 they went to the field for partition, A-1 picked up a quarrel with the deceased and beat with a stick on the head of the deceased Kotaiah and caused bleeding injuries and whereas A-2 and A-3 caught hold the deceased and beat him. P.W.1 is the wife of the deceased has stated that her husband purchased the land along with A-1 and P.W.3 from P.W.10 and on the date of partition they went to the field and there was quarrel between her husband and A-1 and A-1 beat her husband with a stick on the head and on the abdomen. A-1 also bitten her husband on throat region. She specifically stated that A-2 and A-3 did not do anything against her husband. According to her, her husband fell down and she went to the police station and gave a complaint under Ex.P-1 and her husband died while undergoing treatment on the next day. In the cross-examination, she stated that she cannot read and write, and the complaint was written at the police station, and she cannot say who scribed the same. According to her, A-1 is elder to her husband and her husband and A-1 partitioned their property earlier. She denied the suggestion that her husband fell down and received injuries and died. P.W.2 is the son of the deceased and according to him, on the date of incident, they went for partition of the land and when his father was near his field and was planting a stone, A-1 pushed his father with a stick and he intervened and when A-1 tried to beat him with the stick, he sat and it hit his father. He claims to have gone to the police station along with his father, and thereafter to the hospital. In the cross-examination, he stated that he was examined by the police on the same day and subsequently he was examined. In the cross-examination he also stated that he did not specifically state to the police that he intervened and thereafter his father was beaten. P.W.3 who is said to be the person who made the joint purchase of land along with the deceased and A-1, and was said to be an eye witness to the incident did not support the prosecution case. His evidence only shows that the deceased was brought to the village with injuries and he does not know the cause of the injuries. P.W.10 who is said to be the person who sold the property to the deceased and A-1 and he did not support the prosecution case about the sale. According to him, he sold Ac.2.00 of land to P.W.1’s wife after the death of the deceased Kotayya. He was not present when the deceased was beaten. Therefore, to speak about the incident alleged to have been occurred on 7.4.2000, the P.Ws.1 and 2 are the only eye witnesses to the incident and the version of the prosecution that A-1 and P.W.3 purchased the land of Ac.2.00 jointly from P.W.10 could not be established by the prosecution and as such the question of going to the said land on 7.4.2000 for partition of the said land does not arise. P.W.4 who is said to be the Mediator for conducting Panchanama and according to him, he signed the Panchanama Ex.P-3 which was conducted by the police and it does not establish about the commission of the offence by the appellant. Therefore, from the evidence of P.W.9 Dr. T. Koteswara Rao who examined the deceased on 7.4.2000 at 11.00 p.m could establish about the receiving of three injuries by the deceased and they are as follows: 1. Abrasion 3 x 1 cm above the right neck. 2. Abrasion 3 x 1 cm over the left temporal region. 3. Contusion 5 x 2 cm over the left front of parietal region. and he issued the injury certificate under Ex.P-5. Doctor P. Srinivasa Rao who has conducted the autopsy found a fissured fracture of skull of 14 cm. length present over front to parietal region (left) placed horizontally is 14 cm to the left of midline and 14 cm above left ear. Therefore, from the above said evidence, the prosecution could be able to establish the head injury on the deceased and according to the prosecution, the said injury was caused by A-1 with a stick and according to the P.W.14 who is the investigating officer, in pursuance of confession of A-1, he recovered M.O.1 stick in the presence of P.W.8, but P.W.8 did not support the version of the prosecution and according to him the police obtained signature on the panchanama and no property was seized at the instance of A-1. Therefore, the prosecution also failed to establish about the recovery of M.O.1 stick at the instance of A-1. Thus, the only witnesses available to speak about the hitting of the deceased by A-1 with a stick is the evidence of P.Ws.1 and 2. P.W.1 is the wife and P.W.2 is the son of the deceased and both of them are interested in the prosecution case against the accused and the independent witnesses said to be present at the time of incident have not supported the version of the prosecution. Even the evidence of P.Ws.1 and 2 cannot be believed as they stated before the police about the involvement of A-1 to A-3 in causing injuries to the deceased but P.W.2 has only stated that A-1 has pushed his father with a stick and when he tried to intervene, A-1 attempted to beat him with a stick and he sat down and it hit his father. Therefore, A-1 has no intention to hit the deceased with a stick according to the P.W.2. Since the independent witnesses have supported the version of the prosecution and P.Ws.1 and 2 only the witnesses available are interested witnesses, I hold that their evidence cannot be relied upon to convict the accused for the offence under Section 304 Part-II of IPC as observed by the learned Sessions Judge. Therefore, I hold that the prosecution has failed to establish the offence under Section 304 Part-II against the accused beyond reasonable doubt. Hence, the accused is entitled to benefit of the doubt. In the result, the appeal is allowed setting aside the conviction and judgment dated 31.05.2002 passed by the learned Principal Sessions Judge, Nalgonda in Sessions Case No.574 of 2000 against the appellant herein ______________________ P. DURGA PRASAD,J December 31st, 2010 GK. THE HON'BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.869 of 2002 Date:31.12.2010 Gk.