JUDGMENT
V. Eswaraiah, J.
1. This criminal appeal is filed against the Judgment dated 9-4-1996 made in SC No. 721 of 1993 on the file of the IIIrd Additional Sessions Judge, Guntur in convicting A-2 (appellant herein) under Sections 304, Part II and 324,I.P.C. and sentencing him to suffer R.I. for 5 years and R.I. for 3 months for the offences punishable under Sections 304, Part II and 324, I.P.C. respectively. Both the sentences were directed to run concurrently.
2. Originally, two accused were charge-sheeted. The 1st accused, the father-in-law of the 2nd accused, was acquitted.
3. A-1 has lands abutting the lands of the deceased and P.Ws. 1 and 2. P.W. 1 is the brother of the deceased. P.W. 2 is the mother of the deceased. The deceased is the resident of Mandadam village.
4. The facts in brief are that on 12-5-1993 morning, A-1 ploughed some extent of land belonging to the deceased and P.W. 1, which is abutting the land of A-1, by engaging a tractor belonging to P.W. 3, for which, the deceased took an objection and stopped the tractor. Then, there was an altercation between A-1 and the deceased and in that, A-2 also joined with A-l; and both of them beat the deceased. On the intervention of P.W. 5, the accused went away; and after that, the deceased went to his house and informed about the incident to his mother (P.W. 2) and also his brother (P.W. 1). Then, the deceased and P.Ws. 1 and 2 went to the fields, but the accused were not found there; and therefore, when they were returning to their home at Mandamam via Malkapuram and whent they reached at Malkapuram Centre at about 11.00 a.m. near the house of Mitta Rathaiah, the accused attacked the deceased-Sambasiva Rao with a stout casurina stick; and in the attack, the deceased was lying to protect himself from the hands of the accused. A-2 beat him on his back side of head with the casurina stick, by which, the deceased fell down. When P.W. 1 went to the rescue of his brother, he was also beaten by A-2 on his left shoulder. Meanwhile, A-1 beat the deceased on his head with casurina stick. After receiving the blow, P.W. 1 ran towards his house due to fear. On seeing this incident, P.W. 2, the mother of the deceased, raised cries and the accused left the place. P.W. 1 reached the spot and found his brother dead; and with the help of his mother (P.W. 2), the dead body of the de- ceased was shifted to a nearby babul tree and telephoned to Tulluru Police Station about the incident. P.W. 7, the Sub-Inspector of Police who received the phone-call round about 12.00 noon, immediately proceeded to the scene of offence and recorded the statement of P.W. 1 and returned to the police station and registered the same as a case in Crime No. 32/93 under Sections 302 and 324, I.P.C. and informed about the incident to the Inspector of Police (P.W. 9) and issued Express F.I.Rs. After receiving the F.I.R., P.W. 9 immediately proceeded to Malkapuram and found the dead body of the deceased near the babul tree, got drafted observation report of the scene of offence and also prepared rough sketch of the scene of offence. He held inquest over the dead body of the deceased in the presence of mediators and examined witnesses P.Ws. 1 and 2 and others. After that, he visited the house of A-1 and found him unconscious with head injury. He then shifted A-1 to the Government Hospital, Mangalagiri and also sent the dead body of the deceased for post-mortem examination. He also sent P.W. 1 for treatment. On 13-5-1993, he visited the disputed land along with mediators and got drafted the observation report. P.W. 5 also witnessed the occurrence and helped A-1 to reach his house. After completion of the investigation, P.W. 9 filed charge-sheet on 2-9-1993.
5. As the accused pleaded not guilty of the charges, the trial took place.
The charges framed against the accused ‘ are
1. That A-1 and A-2 at about 11.00 a.m. on 12-5-1993 at Malkapuram Center near the house of Mitta Rathaiah, did commit the murder of Name Sambasivarao s/o Satyanarayana aged 27 years resident of Mandadam village (deceased) by beating him with stout casurina sticks on the head of the deceased knowingly that the beating will result in his death; and thereby, they have committed an offence punishable under Section 302, I.P.C; and
2. That A-2, in the same transaction, voluntarily caused hurt to P.W. 1 Name Venkateswara Rao, the brother of the deceased, by beating on his left shoulder on his interference while beating the deceased and caused simple injury to him and thereby committed an offence punishable under Section 324, I.P.C.
6. In support of the prosecution case, P.Ws. 1 to 9 were examined; and Exs. P-1 to P-1 1 and M.Os. 1 to 3 were marked. On be-half of the defence, none was examined, but Exs. D-1 to D-3 were marked.
7. P.W. 1, the brother of the deceased, deposed that A-2 is the son-in-law of A-1. They are having lands side by side. Their lands and the lands of A-1 are situated side by side. On the date of the incident, A-1 ploughed their lands (the lands of P.W. 1 and the deceased); and in that regard, the deceased went to the fields and noticed about the ploughing of their lands by the accused; and when the deceased questioned as to why they were ploughing their lands, the deceased was beaten by A-1 and A-2. Then, the deceased came to their house and informed him; and on that, they went to the fields along with their mother (P.W. 2), but the accused were not at the fields; and therefore, they were returning back to their home; by the time they reached the house of Mitta Rattaiah situated at the center of Malkapuram, A-2 beat his brother with casurina stick on his head. A-1 also beat the deceased with casurina stick on his head. Due to fear, P.W. 1 ran to some distance. Then, A-2 beat him on his (left) shoulder with casurina stick. When his mother raised cries, the accused ran away. By the time he went to his brother, he died. He and his mother took the deceased under nearby a tree; and the offence took place at about 11.30 a.m. After that, he went to the house of one Golkonda Peddarao, who is having telephone; and from there, he informed the S.I. of Police, Tulluru Police Station about the incident. The S.I. of Police, Tlluru Police Station came to the scene of offence and recorded his statement; and Ex. P-1 is his statement.
8. In Ex. P-l, P.W. 1 stated that on that morning, the deceased, having come to know that A-1 ploughed their lands, questioned A-l; then A-1 and A-2 beat his younger brother (deceased); and then, the deceased came home and informed their mother. Then, himself, the deceased and his mother went to their fields, but the accused were not there. Thereafter, they were coming back to their home; and when they reached the main bazar of Malkapuram village and approached the house of Metta Rathaiah, the accused attacked his younger brother emerging from the side of the road with casurina sticks. While his younger brother and A-1 were pushing each other. A-2 dealt severe blows with casurina stick on the head and back of his younger brother. Then, his brother fell down. He went to ward off, but A-2 also beat him with casurina stick on his left shoulder. A-1 also dealt a blow on the head of his fallen brother. Then, he was afraid and fled away. His mother, while comng a little behind, raised hue and cry. Then the accused left his fallen brother and went away.
9. Though P.W. 1 was cross-examined at length, he withstood to his statement Ex. P-1 and his oral deposition. In the cross-examination, he stated that A-2 dealt only one blow on the head of the deceased. After beating the deceased, A-2 also beat him (P.W. 1). After that, A-1 beat the deceased. A-1 dealt two blows on the deceased. A-1 did not receive any injuries. He went to the Government Hospital, Mangalagiri by 8.00 p.m. on that day; and he did not know whether A-1 was at the hospital by the time he went there. He stated that he also raised cries, when A-2 beat the deceased. By the time the neighbours came to the scene, the entire incident was over. He also stated that the deceased received bleeding injuries. But his clothes and the clothes of his mother were not stained with blood, when the deceased was being carried by them to the nearby tree. He also stated that A-2 dealt a blow on his right shoulder.
10. P.W. 2, the mother of the deceased, reiterated the same thing and stated that A-2 beat the deceased with casurina sticks on the head. First, A-2 beat the deceased; and after that, A-1 beat the deceased. On seeing that, P.W. 1 turned back. Then, A-2 beat P.W. 1 with casurina stick on the right shoulder. The deceased died on the spot. In the cross-examination, she stated that A-2 dealt one blow on the deceased and one blow on P.W. 1. A-1 dealt two blows on the person of the deceased.
11. P.W. 3, the owner of the tractor who ploughed the land, stated that he knew both the accused and the deceased; and on that day, he ploughed the land of A-1 with his tractor; and when he was ploughing, the deceased obstructed him from ploughing the land stating that he was ploughing the land of the deceased also. Then, he stopped the tractor and returned home. In the cross-examination, he stated that there is another way to go to the field of the A-1 from Mandadam village apart from the route via Malkapuram. The donka route is shorter than the route via Malkapuram; and he went to the land of A-1 through donka route.
12. P.W. 4, the grandfather of PW-3, stated that he knew the accused and the deceased; and on that day, he went to the fields of the accussed as PW-3 did not return home early with the tractor; and when he went to the fields of the accused, the tractor came to the donka. He stated that there was altercation between A-1 and the deceased regarding boundaries. Then, he advised both of them to settle the matter amiably by measuring their respective lands.
13. PW-5 stated that he is a resident of Malkapuram and he knew both the deceased and the accused. The deceased died more than one year back. On that day, at about 10.15 or 10.30 A.M., he was wating for a bus at the bus stand, Malkapauram. Then, A-1 and the deceased came there altercating each other; and while pushing each other, A-1 fell on the pail and he received injury on his head. Then, he intervened and chastised the deceased and took A-1 to his bouse on a cot. Meanwhile number of persons gathered there. After some time, he found the deceased with injuries and came to know that the deceased died. Somebody told him that A-2 beat the deceased. He found PWs 1 and 2 weeping. In the meantime, bus came and he boarded the bus and went to Mangalagiri. He was declared hostile and he was cross-examined at length. He stated that there was a telephone set in Malkapuram also; and the deceased is related to him through his wife; and he cannot say the name of the person who said that A-2 beat the deceased; and it is not true to say that he got palpitation as he is deposing falsely.
14. PW-6 is the panch for the inquest conducted over the dead body of the deceased.
15. PW-7, the S.I. of Police, stated that when he was in the police station at about 12.00 noon, he received phone call from Mandadam village about the incident that took place at Malkapuram centre and when he was enquiring as to who was informing about the incident, the phone was disconnected. Immediately, he informed the C.I. of Police, Amarvathi through V.H.F. Set. He immediately proceeded to Malkapuram along with constable and found the dead body of the deceased under a tree at Malkapuram centre. He found PWs 1 and 2 and others at the dead body of the deceased Sambasivarao. He recorded the statement of PW-1 and obtained his thumb impression on Ex.P-1. He posted guard at the dead body and proceeded to the police station and registered a case in Crime No. 32/93 under Sections 302 and 324, IPC and issued Ex.P5 FIR. The C.I. of Police (PW-9) came to Thulluru Police Station. Then, he went along with him to the scene of offence. PW-9 took up the further investigation. In the cross-examination, he admitted that there is certain over-writing as putting “14 hours” in the FIR.
16. PW-8 is the Civil Assistant Surgeon, who examined the deceased and found the following external and internal injuries :
External Injuries :
1. An irregular lacerated injury 1 x 8 x deep on the back of the occipital region. Fracture in skull present.
2. 4×3 cm size contusion on forehead.
3. 1×2″ cut laceration near right side of nose and nose deviated to the left side, bleeding from the nose present.
4. 4 x 5″ in size contusion on left elbow joint and fracture of the left elbow joint present.
5. Swelling of 4 x 8″ size front of the neck present.
Internal Injuries
Front of the neck :Both sides rupture of the corotids and jugulars 1/2 ounce old clotted blood present underneath the scalp 1/2 clotted blood seen.
Brain :Subdural hematoma present. Haemorrage fluid present in the brain matter. Lungs congested. Heart empty. Liver spleen pale. Intestines contain gas, Stomach 1/2 of litre of partly digested food particles.
He gave the final opinion that the deceased died due to the head injury (subdural haemotoma) within 24 hours in duration prior to her postmortem examination. Ex. P-6 is the postmortem report given by her.
17. PW-8, the doctor, also stated that she examined PW-1, who received on scapula.
18. PW-8 also examined A-1 and found injury on the skull and it is simple injury.
19. PW-9 is the C.I. of Police, who investigated the case and filed the charge sheet.
20. On the aforesaid oral and documentary evidence, the learned III Additional Sessions Judge, Guntur held that the deceased died due to Injury No. 1 on his head, where the skull was fractured and the said injury is caused by A-2 and accordingly, A-2 was alone held guilty and A-1 was acquitted.
21. The learned counsel for the appellant vehemently submitted that there are material discrepencies in the evidence of PWs 1 and 2 and 5 and the trial Judge disbelieved the evidence of PW 1 in so far as the material facts relating to causing injuries and beating on the deceased by A-1; and the case of the prosecution is indivisible and cannot be divided and it is an integral one, that is to say, A-1 and A-2 armed with sticks and attacked the deceased; and the prosecution has failed to explain the particular overt acts that are attributable to A-1 and A-2; and according to them both the accused dealt blows on the head of the deceased resulting in his death; and having disbelieved the story of the prosecution with regard to the overt acts attributed to A-1, the learned trial Judge ought not to have convicted A-2. He further submitted that the overt acts attributed to A-1 are serious in nature; and according to the prosecution, A-1 dealt two blows on the deceased; and this being the core of the case, both the beatings caused by A-1 and A-2 on the deceased are inter-twined and inseparable and the prosecution is bound to state all the facts without any suppression and also failed to explain the injuries caused on A-l; and the evidence available on record shows that the acts committed by A-1 and A-2 are inseparable; and all the witnesses are relations; and no independent witness is examined and there is no corroboration of interested witnesses by any other independent witness; and even there are discrepancies in the evidence of PWs 1 and 2; and no explanation was made with regard to the injuries caused to A-l. He further submitted that in the statement of PW 1, it is stated that A-2 beat on his left shoulder and according to the charge also A-2 beat on the left shoulder of PW-1; but whereas PWs-1 and 2 deposed that A-2 beat on the right shoulder; and therefore, the evidence of PWs 1 and 2 is not truthful and it cannot be said that A-2 beat PW-1 in view of the said discrepancies; and therefore, A-2 cannot be held guilty for the offence under Section 304, part II on under Section 324, IPC. He further submitted that there are no blood-stains on the ground or on the clothes of PWs 1 and 2; and the so called weapons (casurina sticks) have not been recovered; and neither the neighbours nor the villagers have been examined; and Golkonda Peddarao, from whose house telephone has been made to the Police Station, has not been examined and the evidence available on record is only shaky,and the injury on PW 1 is not stated in the inquest report; and all the aforesaid cumulative circumstances must be weighed in favour of A-2 giving him benefit of doubt for his acquittal.
22. Relying on the Judgments of the Supreme Court in Bhagirath v. State of M.P. and Lakshmi Singh v. State of Bihar , the learned counsel for the appellant submitted that the prosecution must succeed or fall on its own case; and when the substratum of evidence is found to be false, the only course open to the Court is to consider the case of the prosecution against the accused; but it cannot assume and presume the evidence, which is not definite and not explained by the prosecution. He further submitted that as there are bleeding injuries, the non-recovery of the blood either on the ground or on the clothes of PWs 1 and 2, who are said to have shifted the body of the deceased to a nearby tree, creates a doubt on the case of the prosecution and in this case, the defence also failed to explain the injuires caused on A-1, which also creates a doubt on the case of the prosecution. The prosecution case can succeed by substantially proving the very story it alleges and it must stand on its own legs and it cannot take advantage of the weakness of the defence nor can the Court on its own make out a new case for the prosecution and convict the accused on that basis.
23-24. The learned counsel for the appellant also relying on Meharaj Singh v. State of U.P. submitted that the material particulars have not been stated in the inquest report; and there being one of the bleeding injuries, neither the blood-stained earth nor the blood-stained clothes have been recovered and therefore, it cannot be said that PWs 1 and 2 are eye-witnesses.
25. In the aforesaid case, there was a specific averment in the FIR and the investigation reveals that the deceased received bleeding injuries ; and the wife, who is said to have been present in the scene of offence after causing injuries by the assailants to her husband, she was holding the head of her husband, i.e., the deceased, in her lap and tried to provide some comfort to him; and admittedly, there are bleeding injuries to the deceased and the case of the prosecution was that there s on the clothes; and therefore, in those circumstances, Their Lordships were of the opinion that the case of prosecution was doubtul,
26. On the other hand, the learned Public Prosecutor stated that as per the subsequent Judgment of the Supreme Court in Rajendra Singh v. State of Bihar 2000 (2) ALD (Cri) 79 (SC) 2000 Cri LJ 2199, it is well settled that the non-explaination of the simple injuries on the accused is not fatal to the case of prosecuiton and if the prosecution fails to explain the grievous injury on the accused person, which is said to have been caused in the course of the occurrence and then only there will be a little suspicion on the case of the prosecution, but not otherwise.
27. In State of H.P. v. Lekh Raj , the decision of the Supreme Court in State of Rajsthan v. Kalki , has been reiterated, holding that in the deposition of the witnesses, there are always normal discrepancies, however, honest and truthful they may be. Such discrepancies are due to the normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and the like. The material discrepancies are those, which are not normal and not expected of a normal person.
28. In view of the aforesaid Judgments cited by the learned counsel on either side with reference to the facts in this criminal appeal, the question that arises for consideration in this appeal is whether the prosecution has proved the guilt of A-2 beyond all reasonable doubt?
29. In the earlier statement in Ex. P-1, PW 1 stated that there was an altercation in the morning and the accused ploughed the field of the deceased, both A-1 and A-2 beat the deceased; and when the deceased came to the house and informed, PW-1, the deceased and his mother went to the field; and having found that the accused were not there and while they were coming back to their house via Malkapuram, Nallati Eswara Rao (A-2) dealt severe blows with casurina stick on the head and back of his deceased brother and then, he fell down. A-1 also dealt a blow on the head of his fallen brother. In Ex. P1 statement, he stated that when the accused attacked his younger brother, his younger brother and A-1 were pushing each other. The said pushing has been explained by PW 5 stating that Al and the deceased came there altercating each other and while pushing each other, A-1 fell on the phial and received injury on his head; and he intervened and chastised the deceased and took A-1 to his house on a cot. PW-1 in his chief examination stated that A-2 beat on the head of the deceased with casurina stick: and A-2 also beat on his shoulder with casurina stick. PW 2, the mother of the deceased, stated that A- 2 beat the deceased first and after that, A-1 beat the deceased. PWs 3 and 4, tractor owners, stated that there was an altercation in the morning in the fields of A-1 and the deceased. PW-8, the doctor, stated that blood, was present on Injury No. 3 of the deceased and Injury No. 1 is an irregular injury 1×8 x 1/2″ skull deep on the back of the occipital region and fracture skull present. The occipital region is on the back side of the head and as per the evidence of PW-1, he has specifically stated that A-2 beat on the back side of the head and therefore, the said injury is attributable to A-2 alone; and as per the doctor’s evidence, the deceased died due to the head injury alone; and the said injury could have been caused by heavy blunt object like casurina stick. As per the evidence available on record, A-1 received injury on head, which is simple in nature, said to have been caused due to the falling on the phial in the altercation between A-1 and the deceased and therefore, the learned trial Judge, instead of holding A-1 guilty for the offence committed by him under Section 324, IPC, thought it fit that it was not safe to convict him; and in view of the deposition of PW-5, A-1 was acquitted. It is not in dispute that the lands of the deceased and the lands of the accused are abutting and it is also not in dispute that there was an altercation in the morning and according to the evidence of PWs 1 and 2 and othrs, the accused beat the deceased in the morning and whle they were coming to their home after seeing the fields in the village of the accused, the accused attacked the deceased; and A-2 dealt a blow on the back side of the head, which caused the death of the deceased. It is not the case of the prosecution that there were any blood-stains either on the ground or on the clothes of PWs 1 and 2. PWs 1 and 2 stated that while shifting the body of the deceased under the tree, were no blood-stains on their clothes. The observation report of the scene of offence also states that there were no bloodstains at the scene of offence and thereore, the question of recovering any bloodstains or blood-stained clothes of PWs 1 and 2 does not arise. I, therefore, do not see any illegality in the order of the learned Sessions Judge and I do not find any merts in the appeal. Accordingly, I hold that A-2 is rightly found guilty for the offence punishable under Section 304, Part II and also for the offence punishable under Section 324, IPC for causing injury to PW 1 Accordingly, the convictions imposed on the appellant (A-2) under Sections 304, Part II and 324, IPC are confirmed.
30. In so far as the sentence is concerned, as there was no intention or premediation to cause the death of the deceased and it was a sudden provocation and having regard to the facts and circusmtances of the case, I am inclined to reduce the sentence from R.I. for 5 years to R.I. for 2 years, for the offence committed under Section 304, Part II IPC. The, sentence imposed under Section 324, IPC is confirmed. Both the sentences shall run concurrently. The criminal appeal is accordingly dismissed.