THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL NO.1297 OF 2004 ORDER: This appeal is directed against the conviction and sentence passed by the III Additional Sessions Judge (Fast Track Court), Khammam in S.C.No.80 of 2002 on 13.05.2004. The appellant herein was prosecuted for the offence under Section 302 IPC alleging that on 16.05.1999 at about 6.00 hours P.W.2 went to public tap to fetch water, mean time one P.Tirupathamma, wife of the accused also came to the tap for taking water, and put her water pot before the pot of P.W.2, on which both of them quarreled, meanwhile accused came to the spot and beat P.W.2, on seeing the same, the deceased K.Satyam went to them, then the accused beat the deceased on his head and other parts of the body with a stout stick, resulting which he received grievous injuries. Then P.W.1 took the deceased to the police station along with a complaint Ex.P.1 and the same was registered as Crime No.47 of 1999 under Section 324 IPC and the deceased was sent to the Government Hospital, Sathupalli, from there he was shifted to Head Quarters Hospital, Khammam for better treatment. Later, he was shifted to Osmania General Hospital, Hyderabad and while undergoing treatment, he succumbed to injuries on 19.05.1999. Thereafter, the section of law was altered to Section 302 IPC by P.W.10. P.W.14 took up the investigation and arrested the accused on 08.06.1999 and after completion of the investigation filed the charge sheet. The learned Sessions Judge has framed the charge under Section 302 IPC against the accused and the accused pleaded not guilty for the said charge. In order to establish the said charges, the prosecution examined P.Ws.1 to 14 and got marked Exs.P.1 to P.10 and M.O.1. No oral evidence was adduced on behalf of the accused, but Exs.D.1 to D.8 were marked on his behalf. The learned Sessions Judge by taking into consideration of the said oral and documentary evidence found the accused guilty for the offence under Section 304 Part-II IPC and sentenced to undergo rigorous imprisonment for a period of 6 years. Aggrieved by the said conviction and sentence, the accused therein has filed the present appeal. Now, the point that arises for consideration is: Whether the prosecution could able to establish the offence under Section 304 Part-II IPC against the accused beyond reasonable doubt? P O I N T: The appellant’s counsel has pleaded that in the said alleged incident the accused was beaten by the deceased and his sons and he sustained grievous injuries and lodged a complaint with the police and the same was registered as Crime No.46 of 1999, but the prosecution has failed to expalin the injuries sustained by the accused in the said incident, and the same is fatal to the case of the prosecution. He further pleaded that there is a delay in receiving the FIR in the Court even though the Court is by the side of police Station and the FIR was not registered on the date and time mentioned therein, but it was registered only after the death of the deceased. He further pleaded that the witnesses to the incident are only sons and daughters of the deceased and the independent witnesses turned hostile to the prosecution and the prosecution also could not establish the recovery of M.O.1 at the instance of the accused and no explanation was given by the prosecution why the accused was not arrested even though the investigating officer P.W.14 knows about the date of his discharge from the hospital after his treatment. The Additional Public Prosecutor has pleaded that the evidence of P.Ws.1 to 5 establishes the overt acts of the accused against the deceased and the medical evidence of P.W.13 clearly establishes that the deceased sustained injuries on the back side of his head and the same was supported by the evidence of eyewitnesses. The death of the deceased was due to the injuries caused by the accused; as such the lower Court has rightly convicted the accused for the offence under Section 304 Part-II IPC. The Additional Public Prosecutor also further pleaded that the FIR was sent to the Court through post, as such there is delay of 3 days in receiving the FIR and the same is not fatal to the case of the prosecution. With regard to the injuries sustained by the accused, he has pleaded that the investigation discloses that the accused has exceeded his right of private defence. According to the prosecution, on 16.05.1999 at 6.00 hours P.W.2 went to the public tap to fetch water, at that time the wife of the accused also came there and put her water pot before the pot of P.W.2, on which both of them quarreled, meanwhile accused came to the spot and beat P.W.2, on seeing the same, the deceased K.Satyam went to them, then the accused beat the deceased on his head and other parts of the body with a stout stick, resulting which he received grievous injuries. P.W.1, who is the son of the deceased and was present at the time of the incident, has lodged the complaint Ex.P.1. According to him a quarrel took place at public tap with regard to fetching of water between his mother P.W.2 and the wife of the accused, the deceased gone there and the accused beat him on the back side of his head with a stout stick and he went to the police station along with his father and lodged a complaint. P.W.10 A.S.I has received the complaint from P.W.1 and registered the case in Crime No.47 of 1999 under Section 324 IPC and issued FIR Ex.P.5 and sent the injured to the hospital for treatment and he has conducted the scene of offence observation Panchanama. In the cross-examination, he admitted that the police station is situated at a distance of 10 yards to the Court. On the same day he sent the FIR to court through police constable. He denied that he has not sent the FIR on the same day to the Court but sent on 19.05.1999 after knowing the serious condition of the deceased. P.W.14 Investigating Officer admitted in the cross- examination that a case in Crime No.46 of 1999 was registered on the complaint given by the accused on 16.05.1999 and the said case was closed as a mistake of fact as the accused falsely misrepresented the facts relating to the incident. He further admitted that the distance between the Sathupalli police station and Judicial First Class Magistrate’s Court, is only 10 yards. He denied that the FIR was sent to the Court by post only in order to cover the delay. The FIR in Crime No.46 of 1999 was registered on 16.05.1999 and sent the same to the Court on the same day. Ex.P.1 is the complaint lodged by P.W.1 and the same was registered on the same day at 8.30 hours and issued FIR Ex.P.5. As per the endorsement made on Ex.P.5, it was received in the Court on 19.05.1999 by post. Therefore, there is delay of 3 days in sending the FIR to the Court. As admitted by P.Ws.10 and 14 the police station is at a distance of 10 yards from the Court. Therefore, the question of sending the FIR by post does not arise. Moreover, as admitted by P.W.14 on the complaint given by the accused a case in Crime No.46 of 1999 was registered and the same was sent to the Court on the same day. Therefore, in the above circumstances it is doubtful whether FIR Ex.P.5 was issued on the date and time mentioned therein and the contention of the appellant’s counsel that the same was registered only after knowing the serious condition of the deceased appears to be probable. As admitted by P.W.14 on the same day the accused has lodged a complaint and the same was registered as Crime No.46 of 1999 and whereas the complaint given by P.W.1 was registered as Crime No.47 of 1999. P.W.10 admitted that first the accused came to the police station and gave a report; thereafter he went to the scene of offence and prepared the scene of offence observation report. He also admitted that he has sent the accused to the Government Hospital for treatment. P.W.11 the Sub-Inspector of Police, who received the death intimation of the deceased and altered the section of law and conducted inquest over the dead body of the deceased has stated in the cross-examination after verification of the investigation done by the Head Constable in Crime No.46 of 1999 he closed the same on the ground that the accused herein exceeded the right of private defence. Therefore, the Crime No.46 of 1999 was registered by P.W.10 on the complaint given by the accused; thereafter P.W.10 visited the scene of offence and prepared the scene of offence observation report. According to P.W.11 the said crime was closed basing on the investigation done by P.W.10 as the accused has exceeded the right of private defence, but whereas P.W.14 has stated that the said crime was closed as a mistake of fact. As admitted by P.W.10 the accused was sent to the hospital for treatment after registering of the crime. P.W.14 also admitted that the accused admitted as inpatient in the Government Hospital for treatment of the injuries sustained by him and as per his enquiry on 27.05.1999 the duty Doctor informed him that the accused would be discharged from the hospital after one week. Therefore, the accused was in the hospital for more than 10 days while undergoing treatment for the injuries sustained by him, but the investigating officer could not explain why the said case lodged by the accused was closed and could not explain the injuries sustained by the accused. Moreover, according to P.W.14 the crime registered on the complaint of accused was closed as a mistake of fact, whereas the Sub-Inspector of Police, who has conducted the part of the investigation, has stated that the accused has exceeded his right of private defence. But the prosecution has not produced the FIR in Crime No.46 of 1999 and the final report submitted in the said crime. Therefore, non explanation of the injuries sustained by the accused is fatal to the case of the prosecution. With regard to the alleged incident occurred on 16.05.1999 and sustaining of injuries by the deceased, P.W.1, who is the son of the deceased has stated that the accused hit him on the back side of his head with a stout stick. In the cross-examination, he admitted that the accused beat his father on the back side of the head only one blow and no bleeding and contusion was there. There are no visible injuries caused by the accused on the deceased. But whereas P.W.2, who was present at the time of the incident and wife of the deceased, has stated that the accused beat her on her right ear with his hands and also beat her on her thigh with his hands, due to which there is a swelling. In the meanwhile, her husband came there and took her to the house. The accused came there on their back and beat the deceased with a stick on the back side of the head and also other parts of the body. In the cross- examination, she has stated that the deceased sustained heavy bleeding injury and there are contusions and swelling on the body of the deceased. According to the mediator P.W.8 for the inquest report, he did not find any injury on the body of the deceased and the mediators could not give any opinion with regard to cause of death of the deceased. P.W.13 Doctor, who conducted the autopsy over the dead body of the deceased, has also did not find any external injury. According to him, there is a contusion of scalp of 8 cm X 8 Cm noted in right temporal parital region, Heamotoma noted underneath right temporal lacia, about 100 gms of extra dural heamotoma noted in right temporal parital region, Dural matter dipping into brain right cerebral hemisphere, right cerebral hemisphea compressed by heamatoma leaving a concave depression, fracture fight middle cramial fossa, fracture line traversly from midline, outwards and upwards on walt dividing middle cranial fossa, fracture line measures 12 Cms in length. The above said injuries were found by him after opening the body and the same are internal injuries. Therefore, from the above evidence the deceased has not sustained any external injuries, but he sustained internal injuries on his head. P.W.2, wife of the deceased, at whose instance the incident has taken place, has stated that the accused came from behind and beat her husband on the back side of the head. P.W.1, who is the son of the deceased, also supported the version of P.W.2. According to P.W.3, who is the another son of the deceased also supported the version of P.W.2 with regard to accused hitting her on her right ear and his father took P.W.2 to the house and the accused picked up the gadapa and beat his father on the back side of the head, but whereas P.W.4, who is the daughter of the deceased, in the cross-examination has stated that the accused caught hold of tuft of P.W.2 and beat her. But she did not observe where he beat and what injuries she has received. She denied that she has not witnessed the incident as she was inside the house and the said fact was not stated by her before the police. Therefore, the presence of P.W.4 at the time of incident is doubtful. P.W.3 is another son of the deceased. According to the prosecution at whose instance the enmity was developed between the accused and the deceased. According to the prosecution, P.W.3 is the son of the deceased and he is living separately by doing a petty business by erecting a shop in the premises of the accused and the accused used to instigate the P.W.3 not to pay any money to the deceased for their maintenance, as such the enmity has developed between the accused and the deceased. P.W.3 has stated that he was paying Rs.200/- every month to his mother; the wife of the accused has instigated his wife not to give any amount to P.W.3’s mother, so that he did not give Rs.200/- for two months to his mother and there was a galata between his family members and the accused. But he did not state when the galata has taken place between his family members and accused. Moreover, the said incident cannot be said to be a motive for the accused to cause injuries to the deceased in view of the story of the prosecution that the incident has taken place when a quarrel took place between the wife of the accused and P.W.2 near the water tap. P.W.5, who is also son of the deceased, also supported the version of P.Ws.1 and 2. The independent witness examined on behalf of the prosecution is P.W.6, he has not supported the prosecution, but he only stated that on enquiry he came to know that there was a galata between the accused and the deceased. Therefore, all the witnesses examined on behalf of the prosecution P.Ws.1 to 5 are interested witnesses i.e. sons of the deceased and there is no independent witnesses to speak about the said incident. Therefore, in view of the complaint lodged by the accused and his sustaining injuries by the accused in the said incident and in the absence of any material to show that the accused is aggressor in the said incident that has taken place on 16.05.1999, it cannot be said that the accused has committed the offence of hitting the deceased on his head. Therefore, even though the prosecution could able to establish the injuries sustained by the deceased on the back side of the head, but in the above said circumstances it is not safe to rely upon the evidence of interested witnesses P.Ws.1 to 5. Thus, the accused is entitled for benefit of doubt. Thus, the prosecution has failed to establish the charge under Section 304 Part-II IPC against the accused beyond reasonable doubt. In the result, the appeal is allowed. The conviction and sentence passed by the III Additional Sessions Judge, (Fast Track Court) Khammam in S.C.No.80 of 2002 on 13.05.2004 is hereby set aside and the accused is accordingly acquitted for the offence under Section 304 Part II IPC. _______________________ P.DURGA PRASAD, J 30th September, 2011 Ksp