P.S. Narayana, J.
1. Bhukya Babu Lal, sole accused in S.C. No. 530 of 1993 on the file of the Sessions Judge, Warangal, is the appellant in this present criminal appeal.
2. The Circle-Inspector of Police, Mahabubabad, P.W.10, laid charge sheet against the accused for an offence under Section 302 IPC.
3. The case of the prosecution is that on 15-04-1993, the defacto-Complainant - Ajmeera Kheemiya, P.W.1, came to Mahabubabad Police Station along with Ajmeera Parshya and orally stated that the accused caused injuries to Parshya and on the said oral statement, the Station House Officer reduced the same into writing and obtained thumb impression and registered as a case in Crime No. 82 of 1993 under Section 324 IPC and referred the injured Parshya to the Civil Hospital, Mahabubabad and from there, the injured was sent to MGM Hospital and then, he was referred to Osmania General Hospital, Hyderabad. On 18-04-1993, the Sub-Inspector of Police, P.W.8, received information about the death of the injured and thereupon, the Sub-Inspector of Police secured Bhukya Mangiya and Banoth Dasru and proceeded to Osmania General Hospital, Hyderabad and there, he had obtained the death intimation of the injured from the Superintendent, Osmania General Hospital, Hyderabad, and inquest was held over the dead body of the deceased and the dead body was sent for postmortem examination. He had returned to the Police Station and altered section of law from Section 324 IPC to Section 302 IPC and further investigation was taken up by the Circle-Inspector of Police. After taking up the investigation, the Circle-Inspector of Police proceeded to the scene of offence, recorded the statements of witnesses and during the investigation, it was established that these are the residents of Somla thanda eking out their livelihood by digging wells and they agreed to dig wells pertaining to Gram Panchayat at Somla thanda and Laxma thanda and contract was given by the Sarpanch of Laxma Thanda and the Sarpanch also paid Rs. 1,000/-. The said amount was shared equally and the remaining amount of Rs. 300/- was taken by the defacto-complainant and deceased and spent for their personal requirements. Subsequent thereto, they were divided into two groups. One group decided to dig the wells of Gram Panchayat at Laxma thanda and another group to dig the well of Guguloth Bheema at Burukunta Thanda and as per their agreement, the defacto-complainant party completed their work and collected their contract amount from the Sarpanch of Laxma Thanda and the amount was equally shared among the defacto-complainant party and the accused party and they also purchased a goat with the balance amount and shared the flesh equally for their dinner. Then, the defacto-complainant went to Gugulothu Bheema and asked him to pay the amount to accused party, on which, Bheema refused and informed that the father of Babulal by name Deshya informed him not to pay the amount to anybody. Subsequent thereto, Kheemiya returned to Somla Thanda and enquired with the father of the accused and quarrelled, for which, Deshya became angry and slapped on the cheek of the defacto-complainant Kheemiya. In the meanwhile, Bhanoth Jayaram and others intervened and subsided the matter and settled the account and paid an amount of Rs. 250/- pertaining to goat flesh and informed the defacto-complainant party not to ask share in the amount pertaining to Gugulothu Bheema and the matter was settled.
4. It is the further case of the prosecution that on 15-04-1993, when the accused along with his mother went to the house of the defacto-complainant for collecting their basket for the use of carrying tomatoes, there, the deceased Parshya abused the accused in filthy language as to why they came there and the deceased asked the accused as to why he was quarrelling and he wanted to proceed to the house of the Bhukiya Mangiya, Sarpanch of the Village. Meanwhile, on the way, the accused tried to proceed to his house and when he was in front of the house of Banoth Jaya Ram, the deceased was caught hold of him and asked him to come to the house of Sarpanch to settle the matter. The accused, who was armed with a cart-peg, beat the deceased on his head and caused severe bleeding injury and fled away from the spot and the deceased fell down unconscious and while undergoing treatment at Osmania General Hospital, the deceased died. The Medical Officer, who conducted postmortem examination over the dead body of the deceased, opined that the cause of death was due to head injury and on 29-04-1993, the accused was arrested and during the course of investigation, it was established that the accused caused the death of the deceased and as such, liable to be punished under Section 302 IPC.
5. After filing charge sheet before the Judicial Magistrate of First Class, Mahabubabad, and after completion of the formalities, the matter was committed to the Court of Sessions, where the accused was tried. The prosecution had examined P.Ws. 1 to 10 and Exs. P.1 to P.7 and also M.Os. 1 and 2 were marked. On appreciation of the evidence available on record, the learned Sessions Judge, Warangal, had arrived at a conclusion that though an offence under Section 302 IPC had not been proved, prosecution was able to establish its case beyond all reasonable doubt under Section 304 Part II IPC and on hearing the accused on question of sentence, taken a lenient view and sentenced him to undergo Rigorous Imprisonment for five (5) years and aggrieved by the same, the present appeal is preferred.
6. Sri A. Prabhakar Rao, the learned counsel representing the appellant-accused, with all vehemence, would contend that the whole story of the prosecution is doubtful since the First Information Report was given by P.W.1, who is said to be an eye-witness to the incident and in the said First Information Report, the presence of the other alleged eye-witnesses is conspicuously absent. The learned counsel would also contend that on a careful reading of the First Information Report, it would be clear that for the reasons best known, the scene of offence had been shifted and the presence of basket and the presence of mother and the presence of other witnesses had been made as an improvement just to suit the convenience of the prosecution version. This developed version of the prosecution in the facts and circumstances may have to be viewed with grave suspicion and on that ground, the appellant-accused is entitled for an acquittal. The learned counsel placed strong reliance on BANDI MALLAIAH AND OTHERS v. STATE OF ANDHRA PRADESH, AIR 1980 SUPREME COURT 1160 in this regard. The learned counsel also would further contend that the alleged scene of offence that is before the house of P.W.2 cannot be believed at all, especially in view of the fact that P.W.6, the alleged panch witness to the scene of offence and also inquest panchanamas, had not supported the prosecution and hence, the scene of offence had not been established. The learned counsel would further contend that there are several serious omissions in the evidence of P.W.1, which had been well proved through the investigating officer. The learned counsel would also point out that all the witnesses in one voice spoken to about the causing of injury on the left side and corresponding injuries are not there whereas as per the evidence of the doctor, P.W.7, the said injuries are on the right side. Hence, the very hit with the cart-peg to cause death or with the knowledge to cause death had not been established by the prosecution. The learned counsel would further contend that at any rate, these are all interested witnesses, who had been thought of subsequently to support the prosecution version and this stand taken by the defence is well supported by at least, the portion in the First Information Report and hence, such evidence may have to be viewed with suspicion. The learned counsel placed reliance on STATE OF HARYANA V. INDERAJ AND ANOTHER, : 1993CriLJ3909 . The learned counsel while concluding the submissions would submit that viewed from any angle, it cannot be said that the accused had the requisite knowledge to bring it under the provisions of Section 304 Part II IPC and at the best, it may be falling under Section 324 IPC and nothing more, if this Court is of the opinion that the prosecution was able to establish the incident, as such, on the material available on record.
7. The learned Additional Public Prosecutor, on the contrary, would submit that the First Information Report need not contain the details and there is some reason for the quarrel and there cannot be any dispute that the incident happened at the house of P.W.2. This is well deposed by P.Ws. 2, 3, 4 and 5. The learned Additional Public Prosecutor with all fairness would submit that no doubt, there is some material contradiction in the evidence of P.Ws. 1 to 5 that the hit with the cart-peg was on the left side but the injuries as spoken to P.W.7, the doctor, are on the right side. But, however, when the direct evidence is available on the same ground and the medical evidence does not show the other corresponding injuries, the well-considered judgment of the learned Sessions Judge cannot be reversed. The Public Prosecutor also would submit that in the facts and circumstances of the case, it may have to be taken that when the accused was beating with a cart-peg, he had requisite knowledge and hence, the ingredients of Section 304 Part II IPC are well satisfied and hence, the appeal is liable to be dismissed. The learned counsel also placed strong reliance on CAMILO VAZ V. STATE OF GOA, 2000 Crl. L.J. 1816.
8. Heard both the counsel and also perused the evidence available on record.
9. The First Information Report given by P.W.1 reads as under:
'I am resident of Somla thanda village, I am living by doing cooli work. I along with Azmeera Parsya, Azmeera Bhimla, S/o Hemla, Bhukya Babulal, S/o Dasia, Azmeera Bhichya, S/o Ramja, Maloth Bausi, S/o Sukhiya, Guguloth Damla belongs to our Thanda, agreed to dig two Government wells and while digging some days after we have separated due to quarrel regarding the expenses. I along with Parsia, Bausing Damla were digging one well and Azmeera Bhima, S/o Hemla, Bhicha, Bhukya Babulal were digging another well on 15-4-1993 evening at about 7.00 p.m. I was along with Parsia at my home and at that time Azmeera Bhimla came and asked us that their digging of well is over and they told us to come for laying the boundary around the well. While they were asking we told that already a panchayat was conducted and we have no friendship with you. Then Bhukya Babulal came from the house of Azmeera Bicha and abused as 'Lanjekodaka'. Our friendship is not required. Earlier you have expended all the money. The parsia told 'who have expended the money'. At that time Bhukya Babulal beat on the head of Parsia with a 'Sanugoyya' (Cart peg) and injured him and went away. At that time, Parsia fell unconscious and we brought him to you in a bus and giving this statement.'
10. It is not in controversy that the incident happened on 15-04-1993 and the accused ultimately, died on 17-04-1993. The charge framed as against the accused is hereunder:
'That you on or about 15.4.1993 at about 7 p.m. at Somla thanda, h/o Parvathagiri did commit the murder of Ajmeera Parshya, S/o Ramja by intentionally causing his death by beating him with cart peg on his head and caused severe bleeding injury and as a result of which the said Ajmeera Parshya became unconscious and on 17.4.1993 at about 4.00 he succumbed to the injuries at Osmania General Hospital, Hyderabad and that you thereby committed an offence punishable under Section 302 IPC and within my cognizance.'
11. P.W.1, who had reported the matter to the police, deposed that there was some dispute between himself and father of the accused Dasya relating to the digging of wells and also about the details relating to the same. He also deposed that his house and the houses of Parshiya, Bheekiya and Bheemla are nearby each other and after sun set, on the date of offence, the accused came to the house of Bichiya with a cart-peg on his hand and began to abuse him and the deceased Parshiya came and objected and he began to abuse them saying that he had to pay some money and they asked him that they should go to the Sarpanch for resolving the dispute. The accused, his mother and Parshiya were going ahead of them abusing each other and near the house of P.W.2 under a street light, the accused beat Parshiya with the cart-peg on the left temple region and with that Parshiya fell on the ground, blood profusely oozed from the nostrils and ears and it was witnessed by Bheekiya, Jairam, Husli and Tulasi and he became speechless and they tried to administer water but he did not take and he was taken to the Government Hospital, Mahabubabad. They first went to the Police Station and from there, they were sent to the Government Hospital and his statement was recorded and his thumb impression was obtained on Ex. P.1. On the advise of the Doctor, Parshiya was shifted to MGM Hospital, Warangal and on the advise of doctor of MGM Hospital, Warangal, they had taken him to Osmania General Hospital, Hyderabad, where he died. This witness was cross-examined at length. Several questions were put to him relating to the prior disputes relating to these parties. This witness in his cross-examination also deposed that it is not true to say that he did not tell before the police about carrying of cart-peg by the accused and there was light at the scene of offence and it is not true to say that he had not mentioned the names of any other eye-witnesses in Ex. P.1 or in his statement and it is not true to say that he told before the police that when he was at his house along with the deceased, the offence had taken place and for the first time, he was telling that the offence took place at the house of Jairam. This witness also deposed that it is not true to say that he stated in the same manner as in his 161 Cr.P.C. statement and it is not true to say that in view of the dispute between himself and Jairam on one hand and accused on the other hand and his father and they had falsely implicated the accused in this case and it is not true to say that for the first time, he was projecting that the offence had taken place at the house of Jairam and he had denied the other suggestions also. Certain suggestions were put to him relating to Pappu Annam and also the gathering and the persons who gathered taking some intoxicants.
12. P.W.2 is the witness who had spoken about what was transpired. This witness also deposed that near his house, there are two ways, one going to the house of Sarpanch and other road leading to the house of the accused. Parshiya and P.W.1 asked the accused as to why he was going towards his house and not towards the house of Sarpanch. In spite of it, he was going towards his house and then, accused beat the deceased Parshiya with cart peg on the left temple region and in the meantime, the accused mother who was carrying a basket placed it on the ground and was requesting her son not to do anything and due to the beatings, Parshiya fell on that basket and he became motionless. He directed his wife to bring water and he tried to administer the same to Parshiya but he did not receive the same and they had seen flow of blood from his nostrils and ears and it fell on the basket and the basket is M.O.1 and cart-peg is M.O.2. This witness also deposed that P.W.1 and Bave Singh removed the deceased from that place to Mahabubabad. This witness was also cross-examined and was denied that he was deposing false evidence and the other suggestions were also denied.
13. P.W.3, who is the elder brother of the deceased, is another eye-witness and he had deposed about the accused pushing away the mother and with cart-peg beating on the left temple region of Parshiya, who had fallen down on the basket and losing his consciousness and also about the bleeding of blood from the nostrils and ears of the deceased. This witness was also cross-examined. P.W.4 is yet another witness deposed that she was sitting at the hut of P.W.2, when Jairam's wife Husli was cooking food and Jairam and Bheekiya were sitting there. She had also deposed about these persons moving at the relevant place and when there was a quarrel, the mother of the accused was requesting not to quarrel and the accused pushing away the mother of the deceased and with cart-peg beating on the left temple region of Parshiya and the deceased falling down on the basket and also the bleeding of blood from nostrils and ears. This witness was also cross-examined and in her cross-examination, she deposed that it is not true to say that she did not state before the police that P.W.1 and Bave Singh took Parshiya to Mahabubabad and it is not true to say that she did not tell before the police that Parshiya demanded the accused to go to the house of Sarpanch and he refused and then, beat Parshiya and she admitted in her cross-examination that there was some flow of blood on the basket but she did not see the amount of blood flowed and she had denied the suggestion that nothing happened and she was giving false evidence. Likewise, P.W.5 was also examined. P.W.5 clearly deposed that the accused was having a cart-peg and his mother was having a basket. After reaching the house of Jayaram, Parshiya asked the accused to come to the house of Sarpanch but he refused. The mother of the accused kept down the basket and pleaded the accused not to quarrel. Accused pushed away his mother and beat Parshiya with cart-peg on the left temple region and then, he fell on the basket and became motionless and there was bleeding from nostrils and ears and that the other aspects had also been deposed by her. P.W.6, the then Sarpanch, deposed that he was one of the arbitrators, who had settled the matter relating to digging of well. He had also deposed that the police had inspected the scene of offence and prepared panchanama and there is a street light by the side of the house of P.W.2 and also behind his house. Ex. P.2 is the panchanama attested by him and actually, he was not present when panchanama was prepared and he did not see if any property was seized at that place and therefore, he was declared hostile and cross-examined and no doubt, certain suggestions were put to him but for political reasons, he was deposing falsely.
14. On the strength of this evidence, elaborate submissions were made by the learned counsel representing the appellant-accused that inasmuch as the basket was not sent to the Forensic Science Laboratory and the panchanama was not proved and even the scene of offence had not been established, the appellant-accused is entitled to the benefit of doubt.
15. The evidence of P.W.7, the doctor, is that he had conducted postmortem over the dead body of the deceased and he found the following external and internal injuries:
External injuries:
1. Bleeding from the both ears.
2. Contusion over right parietal bone 6x4 cms / abrasion 3x1/2 cms.
3. Fracture right parietal bone vertically placed above the right ear.
Internal Injuries:
1. Subdural hemorrhages seen entire area, blood clothes present.
2. On cut section of the brain petichial hemorrhages seen.
3. Basal skull fracture horizontally placed 6 cm in length.
16. The opinion expressed by the doctor is to the effect that the cause of death is due to head injury. Approximate time of death is on 17-04-1993 at 4-50 p.m. at Osmania General Hospital and his certificate is under Ex. P.5. Head injury can be caused with a stick like M.O.2. But, however, in the cross-examination, he did not agree with the suggestion that the head injury could have been caused by a fall. P.W.8 was the Sub-Inspector of Police at the relevant point of time, who had taken up investigation from Head Constable 409, who issued FIR in this case. On 16-04-1993, he visited the scene of offence, examined witnesses P.W.5, P.W.2 and other witnesses, recorded their statements and conducted scene of offence panchanama under Ex. P.2, which was attested by P.W.6 and another and seized M.Os. 1 and 2 and on 18-04-1993, he received a message from Afzalgunj Police Station that the injured died at Osmania Hospital and hence, the section of law was altered and the alteration memo is Ex. P.6. He had gone to Hyderabad and conducted inquest over the dead body of the deceased Parshiya at the mortuary in the presence of same panchas and the same is Ex. P.4. This witness was cross-examined and in the cross-examination, he deposed that P.W.5 did not state before him that the accused came to the house of Bichya and demanded money and that the mother of Babulal came there and she was pushed down by the accused and P.W.5 did not tell before him that while going to the house of Sarpanch, the quarrel had taken place in front of the house of Sarpanch. P.W.9, who is the Head Constable, had recorded the statement of P.W.1, obtained thumb impression and registered the case as Crime No. 82 of 1993 under Section 324 IPC. Ex. P.7 is the FIR. Through his cross-examination, the contradictions and the omissions of P.W.1 had been proved. P.W.10 is the C.I.D. Inspector, who worked as Inspector of Police, Mahabubabad at the relevant point of time, had taken up investigation and had sent the blood stained box M.O.1 to Forensic Science Laboratory through Court and the then Inspector recorded the statements of P.Ws. 3, 4 and others and he arrested the accused and had filed the charge sheet.
17. It is no doubt true that in Ex.P. 1, certain details had not been mentioned but by that itself, it cannot be said that the prosecution version has to be doubted. As per the evidence of P.Ws. 1 to 5, it is clear that the incident had happened. No doubt, submissions at length were made that the scene of offence is elsewhere and the scene of offence is shifted to the house of P.W.2 and these witnesses, who are the interested witnesses, were introduced for the purpose of supporting the prosecution version. It is pertinent to note that from the evidence, it is clear that there were certain disputes relating to the digging of wells and the sharing of amounts. There cannot be any controversy that there was some quarrel and during the quarrel, the incident happened. Now, the question is, in the facts and circumstances of the case and as per the evidence available on record, whether the offence would fall under Section 304 Part II IPC or under Section 324 IPC. The learned counsel for the appellant-accused no doubt, placed strong reliance on (1) & (2) supra and there cannot be any quarrel about the propositions laid down in the said decisions. It is pertinent to note that as far as the precedent value in a criminal case is concerned, in many of the cases, it would be very limited since several of the matters on criminal side would be decided on facts and hence, unless it is a pure question of law in applicability of the precedents, criminal courts are expected to be careful and cautious. These are not pure questions of law. These are questions on appreciation of facts. In (3) supra, the Apex Court at para '14' observed as under:
' This section is in two parts. If analysed, the section provides for two kinds of punishments to two different situations. (1) if the act by which death is caused is done with the intention of causing death or causing such bodily injury as is likely to cause death. Here important ingredient is the 'intention'; (2) if the act is done with knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death. When a person hits another with a danda on vital part of the body with such a force that the person hit meets his death, knowledge has to be imputed to the accused. In that situation, case will fall in Part II of Section 304, IPC as in the present case. We are also not oblivious of the fact that other four accused who were similarly convicted with the appellant with the aid of Section 149, IPC have been held guilty only for offence under Section 326, IPC.'
18. Reliance was also placed on the decisions reported in NALLETI SWARA RAO (A-2) V. STATE OF A.P., 2002(1) ALT (Crl.) 107 and RULI RAM AND ANOTHER V. STATE OF HARYANA, 2003(1) ALT (Crl.) 241 (SC) wherein, the Apex Court held as under:
' Coming back to the factual position as noted by the courts below the conclusions rendered by the trial judge appear to be sound. He had noted several factors to conclude that the intention was not to commit murder, but to create some disturbances at the polling station in order to divert attention of the crowd collected, so that the booth capturing would be facilitated. No injuries were caused to the deceased before they were thrown in the pond, and there was no attempt to even strangulate them. However, the accused-appellants could be attributed the knowledge that the natural and proper consequences of their acts was likely to cause death. The High Court did not indicate any basis to hold that the case was covered by Section 302 IPC. There was only a casual observation that the murders were committed intentionally because relatives of the deceased did not agree to vote in favour of the accused-appellant's candidate. There is absolutely no discussion to fortify the conclusion. The inevitable result is that the proper provision to be applied is Section 304 Part II IPC.
19. The First Information Report would read as though on the date of the fateful day, the incident happened at the house of P.W.1. It is also pertinent to note that the presence of the other witnesses had not been mentioned in the FIR. However, the consistent version of the prosecution is that the scene of offence is just before the house of P.W.2 and there was light during that time. Evidently, this appears to be an improvement in the version of the prosecution. It is also pertinent to note that P.Ws. 1 to 5 consistently had deposed that the accused beat on the left side which according to the prosecution version, is the result for ultimate death of the deceased after a couple of days. The evidence of doctor is otherwise. It is no doubt true that when the direct evidence is available, the medical evidence may not play a prominent role but here is a case, where the very death had resulted or occurred due to head injury and it is the hitting with a cart-peg by the accused. Whether it is on the left side or the right side, the version from P.Ws. 1 to 5 consistently is on the left side. The medical evidence is contra. Though there is evidence available on record relating to the incident, as such, there is some suspicion relating to the scene of offence and also some suspicion is thrown relating to the manner in which, the incident had happened, it is also pertinent to note that it is not as though with a deliberate pre-meditated determination, the accused brought a cart-peg for the purpose of doing away with the life of the deceased. Even as per the prosecution version, there was some controversy relating to the digging of wells or sharing of the amounts and they wanted to approach Sarpanch to take the resolution to the dispute. By going through all the way, some incident had happened and after a couple of days, the deceased died. This is in nutshell, the story of the prosecution.
20. Now, in the background of these facts, it may have to be appreciated whether it is a case falling under Section 304 Part II IPC or Section 324 IPC. Section 304 Part II IPC dealing with punishment for culpable homicide specifies 'with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.' The knowledge to cause death is definitely an essential ingredient to attract the offence under Section 304 Part II IPC. In the light of the deviation of the prosecution version commencing from FIR and of introducing the witnesses and making an attempt to shift the scene from the house of P.W.1 to that of P.W.2, these are all broad aspects which may have to be taken into consideration and also the fact that in the facts, it could not be visualized that it is a deliberate premeditated determination that the cart-peg was carried by the accused for the purpose of hitting with a view to do away with the life of the deceased. It was just in the course of some altercation, no doubt, which resulted the death of the deceased after a couple of days. Taking all the facts and circumstances into consideration and in the light of the factual position and also in view of the peculiar features of the case commencing from the First Information Report and inclusive of the shifting of scene and on careful scrutiny of the evidence of all the witnesses, this Court is of the opinion that the incident, as such, had happened but the requisite ingredients of Section 304 Part II IPC are not available so as to sustain the conviction under Section 304 Part II IPC. Section 324 IPC dealing with voluntarily causing hurt by dangerous weapons, reads as under:
'Whoever, except in the case provided for by Section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire, or any heated substance, or by means of any poison or any corrosive substance or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both.'
21. In the light of the facts and circumstances, this Court is of the considered opinion that the conviction and sentence for the offence under Section 304 Part II IPC for the reasons referred to supra, are liable to be set aside. But, however, the appellant-accused is liable to be convicted under Section 324 IPC. Accordingly, the conviction and sentence are hereby modified and the appellant-accused is convicted under Section 324 IPC and sentenced to undergo Rigorous Imprisonment for a period of two (2) years.
22. Thus, the criminal appeal is partly allowed to the extent indicated above and the appellant-accused is convicted and sentenced for the offence under Section 324 IPC as referred to supra. It is needless to say that the appellant-accused shall surrender to serve the rest of the sentence and the appellant-accused is also entitled to set off of the imprisonment if any, already undergone. The bail bonds shall stand cancelled.