THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.1047 OF 2004. DATED: 10-02-2010. Between: Kukka Odelu … Appellant/A1 and State of A.P. rep. By Public Prosecutor, High Court of A.P. Hyderabad. … Respondent/Complainant THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.1047 OF 2004. JUDGMENT: This Criminal Appeal by A1 under Section 374 (2) Cr.P.C., is preferred against the judgment, dated 09-03-2004, in S.C.No.495 of 2000, on the file of the II Additional Sessions Judge, (Fast Track Court), Adilabad, whereunder and whereby the appellant-A1 was convicted of the offence punishable under Section 304 Part II r/w 34 IPC and sentenced to undergo Rigorous Imprisonment for a period of five years. 2. Brief facts, that are necessary for disposal of the present Criminal Appeal, may be stated as follows: Arikela Bheemesh (hereinafter referred to as ‘the deceased’) is the brother of P.Ws. 1 and 2. On 03-09-2000, the deceased and his paternal uncle (P.W.5) were grazing the sheep in the forest and at that time, the deceased left that place informing P.W.5 that his sheep was escaped. Thereafter, the deceased joined A1 to A3 and all of them went to toddy shop of P.W.3, purchased toddy and were consuming by the side of Lakshmi Talkies. At that time, A1 and the deceased quarreled with each other and A1 fisted on the abdomen of the deceased, as a result of which, the deceased fell down and died on the spot. On coming to know about the same, P.Ws. 1 and 2 went to the spot and saw the dead body. On a complaint given by P.W.1, police registered a case, examined the witnesses, conducted inquest over the dead body of the deceased and sent the dead body for postmortem examination. After completion of investigation, police filed the charge sheet. 3. When a charge under Section 302 r/w 34 IPC was framed against A1, read over and explained to him in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate the charge, the prosecution examined P.Ws. 1 to 8 and got marked Exs.P1 to P7. 5. After closure of the prosecution evidence, A1 was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses. He denied the same. On behalf of the accused, no oral evidence was adduced except marking Ex.D1. 6. The trial Court upon consideration of entire oral and documentary evidence available on record convicted and sentenced A1 as above. Challenging the same, A1 preferred this appeal. 7. Now the point that arises for consideration is whether the prosecution proved its case against the accused of the offence punishable under Section 304 Part II r/w 34 IPC beyond all reasonable doubt and whether the judgment of the trial Court is legal, correct and proper? 8. Learned counsel appearing for the appellant-A1 contended that there is no evidence to show that A1 gave fist blow on the abdomen of the deceased, that the earliest part of investigation would clearly go to show that A1 beat the deceased with hands, that the force used by A1 in fisting on the abdomen of the deceased has not been clearly stated by P.W.3, that A1 had no intention or knowledge to cause the death of the deceased, that at best, the offence comes under Section 323 IPC and hence, he prays to set aside the conviction and sentence recorded against the appellant. 9. On the other hand, counsel representing the learned Public Prosecutor contended that the evidence of P.W.3 is very clear that it is the appellant who gave fist blow on the abdomen of the deceased and as a result of which, the deceased died on the spot, that the trial Court after elaborate consideration of evidence on record rightly convicted and sentenced the appellant and absolutely, there are no grounds to interfere with the same. 10. P.W.6 is one of the mediators present when police conducted inquest over the dead body of the deceased under Ex.P5 inquest report. The inquest mediators opined that the deceased died due to fist injury on the abdomen. 11. P.W.7 is the Doctor who conducted autopsy over the dead body of the deceased, found the following injuries: 1. Contusion 2 x 3” on the right forearm posteriarily. 2.Grazing contusion on the left posterior renal region 4 x 6” 3.Contusiofn on the left side of the abdomen 3 x 2” He opined that injury No.3 is possible by fist and the deceased appear to have died due to Cardio respiratory arrest due to neorogenic shock on account of trauma. If a powerful fist is given, a person gets neorogenic shock and he issued Ex.P5 postmortem report. He also stated that neorogenic shock may get due to heart failure. Injury No.3 could have been caused the death of the deceased. So, from the medical evidence, it is clear that if a powerful fist is given on the abdomen, death would have been occurred. 12. The entire case rests upon the solitary testimony of P.W.3. On the date of incident, A1 and the deceased purchased toddy. After consuming toddy, A1 and the deceased quarreled and A1 fisted on the abdomen of the deceased, as a result of which, the deceased fell down and died on the spot. Along with A1, two more persons attacked the deceased. The incident occurred at a distance of 50 yards from the shop of P.W.3. Ex.D1 contradiction was elicited from the evidence of P.W.3 to the effect that other two accused also beat the deceased when the incident is alleged to have taken place. While consuming the toddy, A1 and the deceased quarreled with each other. So, in a petty quarrel, A1 fisted on the abdomen of the deceased. It is not the case of P.W.3 that a powerful fist was given on the abdomen of the deceased with a knowledge that it would likely to cause his death. The circumstances do not indicate that the intention of A1 is to kill the deceased. The earlier part of investigation would reveal that three persons attacked the deceased. Out of three persons, two persons were said to be absconding. Ex.P3 is the earliest statement of P.W.4 recorded by the Magistrate under Section 164 Cr.P.C., wherein it is stated that A1 along with two others gave fist blows on the abdomen of the deceased. Therefore, the earlier investigation does not disclose that A1 alone gave fist blow on the abdomen of the deceased. The evidence of P.W.3 that A1 alone gave fist blow on the abdomen of the deceased is an improvement. Even otherwise, there is no evidence to show that A1 had an intention or knowledge that his act would likely to cause the death of the deceased. Therefore, it cannot be said to be culpable homicide, not amounting to murder. At best, it can be said that A1 committed an offence punishable under Section 323 IPC. Hence, A1 is convicted of the offence punishable under Section 323 IPC and sentenced to undergo Rigorous Imprisonment for a period of six months and also to pay a fine of Rs.1,000/-, in default to undergo Simple Imprisonment for a period of one month. Period of remand, if any, undergone by A1 during the course of investigation, trial and after conviction shall be given set off under Section 428 Cr.P.C. 13. Accordingly, the Criminal Appeal is partly allowed. --------------------- K.C.BHANU, J DATED:10-02-2010 Note: Communicate the Judgment immediately. Hsd