THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE R. KANTHA RAO Crl. Appeal No. 1564 of 2007 J U D G M E N T: (per Hon’ble Sri Justice A. Gopal Reddy) This Criminal Appeal has been preferred against the order dated 01.12.2006 in S.C.No. 259 of 2005 on the file of the III Additional District Judge (Fast Track Court) at Gadwal, whereby and whereunder, the appellant-accused was convicted for the offence punishable under Section 302 I.P.C. and sentenced to undergo imprisonment for life. The prosecution story, in brief, may be stated as follows: The appellant and one Sri Wadde Bazari (hereinafter be referred to as ‘the deceased’) were residents of Kondair Village. On 25.10.2004 at about 07.15 p.m., the complainant (P.W.1) along with one Sri Telugu Anjaneyulu (P.W.2) were proceeding to their respective houses, en route, near a cycle shop belonging to Sri Kurva Venkatanna, they noticed the appellant and the deceased fighting with each other for a T.V. remote of the appellant which was taken by the deceased for his paid amount of Rs.50/-. Then P.Ws.1 and 2 separated them to avoid any untoward incident and thereafter, they went into a tea stall. After a few minutes, they found the appellant lifting the deceased in the air and throwing him down over a boulder, resulting which, the deceased got hit to the boulder on his chest and struggling with life. Immediately, they took the deceased to a local RMP doctor, who advised them to shift the deceased to a hospital at Gadwal and on the way to the hospital, the deceased breathed his last. On the next day, at about 08.00 a.m., P.W.1 presented a complaint to the Sub-Inspector of Police, Itikyala Police Station where a case in Crime No. 59 of 2004 under Section 304-II I.P.C. was registered. On the strength of the Post Mortem report, the section of law was altered from Section 304-II to Section 302 I.P.C. After completion of investigation, the Inspector of Police, Alampur Circle has filed a charge sheet. After appearance of the appellant, the learned III Additional Sessions Judge (Fast Track Court) at Gadwal framed charge under Section 302 I.P.C., read over and explained to him, for which he pleaded not guilty and claimed to be tried. In order to prove its case, the prosecution examined P.Ws.1 to 9 and marked Exs.P.1 to P8. After completion of trial, the appellant was examined under Section 313 Cr.P.C. He has not chosen to adduce any evidence on his behalf. The learned Sessions Judge, after analyzing the evidence and the material available on record, found the appellant guilty of the charge under Section 302 I.P.C. and accordingly, convicted and sentenced him as afore-stated. Hence, the appeal. Heard learned counsel for the appellant as well as learned Additional Public Prosecutor for the State. The simple case of the prosecution is that there ensued some quarrel between the deceased and the appellant regarding payment of Rs.50/- and the same was witnessed by P.Ws.1 and 2, who pacified them. Sometime thereafter, the appellant lifted the deceased and thrown him on the stone. P.Ws. 1 and 2 immediately took the deceased to P.W.6, who is a RMP doctor. As the deceased was in a serious condition, P.W.6 advised them to take the deceased to a hospital at Gadwal, but however, en route, he died. P.Ws.3 and 4 are mother and father of the deceased. They are not eye witnesses to the incident. P.W.5 is a photographer, who took the photographs of the deceased. P.W.8 is the doctor, who conducted Post Mortem examination on the dead body of the deceased. He found the following injuries: External Injuries: 1. Bleeding was present from E.N.T. 2. Abrasion: At below the left lateral epicanthus about 4 cm. x 2 cms. (eye part). 3. Swelling and contusion over the neck about 4 cm. x 2 cms. Contusion. Swelling (10 cm. X 4 cm.) noted. Internal injuries: Hyoid bone fracture noted compressive fracture. No preserved organs (viscera) were seen. He opined that the deceased died due to throttling. P.W.7 is the witness for the scene of offence observation and for the inquest held on the dead body. Though he turned hostile, during the course of cross-examination, he admitted that after preparation of scene of offence and inquest panchnama, he along with one Sri Ram Reddy signed thereon. From the above evidence, it is seen that there was no pre- meditation and the incident took place in a spur of moment and in a heat of passion upon a sudden quarrel and therefore, the accused could not be imputed with the intention of causing death of the deceased, but he could be imputed with the knowledge that injury intended to be caused would likely to cause the death of the deceased. Thus, the prosecution could able to establish that the deceased suffered a homicidal death in a sudden quarrel that took place between the deceased and the appellant and therefore, it falls under Exception (4) to Section 300 IPC and the same is punishable under Section 304-II IPC. In the result, the Criminal Appeal is partly allowed and the conviction and sentence imposed by the III Additional District & Sessions Judge (Fast Track Court) at Gadwal in S.C.No. 259 of 2005, dated 01.12.2006, for the offence punishable under Section 302 I.P.C. are hereby set aside. Instead, the appellant-accused is convicted for the offence punishable under Section 304-II I.P.C. Consequently, he is sentenced to undergo imprisonment, which he has already undergone. He shall be set at liberty forthwith, if he is not required in any other crime. No costs. ------------------------- (A. GOPAL REDDY,J) ------------------------------ (R. KANTHA RAO, J) 7th December 2011 ksld