Ramesh Madhav Bapat, J.
1. The State of Andhra Pradesh has preferred the present appeal questioning the order of acquittal of the accused in Sessions Case No. 20 of 1997 for the offence punishable under Section 302, IPC by the learned Sessions Judge, Srikakulam but convicting and sentencing him for the offence punishable under Section 304, Part-II, IPC to suffer R.I. for five years and to pay a fine of Rs. 2,000 in default to suffer S.I. for six months.
2. Initially, the accused was prosecuted for an offence punishable under Section 302, IPC. On evidence, the learned Judge convicted the accused for an offence punishable under Section 304, Part-II, IPC and sentenced him as stated above. This sentence was felt inadequate by the State and, therefore, the present appeal has been filed.
3-4. The case of the prosecution can be briefly stated as follows :
That the deceased Gali Kannarao happened to be the son of P.W. 1 and the accused Gali Suryanarayana is a son of brother of PW 1. There was a dispute between PW 1 and his son on one hand and the accused and his father on other regarding date-trees which were on the bund in between the land of PW 1 and his brother G. Rama Rao. There were also casurina tope belonging to PW 1 on the South of his land and on the North of land of G. Rama Rao and that in between there is a bund on the west of PW 1’s land with casurina plants and there is also a small field channel on the West of land of the accused.
5. When there is a dispute regarding the date-trees, the matter was referred to the Sarpanch of the village and on inspection the said Sarpanch gave a finding that the land belongs to the deceased and he also directed both the parties to get the bund properly repaired.
6. It is further alleged by the prosecution that one day prior to the date of incident, the deceased had gone to his fields along with one coolie by name G. Appala Guruvulu to erect bund properly and on that day the accused obstructed and picked up a quarrel. The deceased returned home and informed his father about the obstruction caused by the accused and also told him that the accused threatened him to cut the two date-trees on the next day morning.
7. It is further alleged by the prosecution that on the date of incident, the deceased along with farm servant G. Appala Guruvulu went to the fields to complete the construction of bund and that after half an hour later the accused appeared at the scene armed with a stout stick and an axe and challenged the deceased that he was cutting the date-trees and also stated that he would see the end of the person who obstructs and went to the field. In the meanwhile. PW 1 took PW 2 G. Rama Rao, the Ex-Sarpanch of the village apprehending quarrel between his son and the accused and that by the time they went to the field, the accused was found cutting the date-trees and the deceased was obstructing that it should not be cut, then PW 1 intervened and tried to separate the accused and the deceased. The accused was carrying an axe in his hands and the deceased snatched away the axe and threw it away, thereafter the accused caught hold of the neck of PW 1 and pushed him down and there was scuffle between the accused and the deceased and in spite of PW 2 trying to pacify them, the accused is alleged to have picked up a knife from the belt tied to his waist and stabbed on the left side of the chest of the deceased and that the deceased cried saying that he was killed. Thereafter, PW 1 tied the bleeding injury with a towel and in the meanwhile the accused ran away from the scene of offence. PW 1 took the deceased to headquarters hospital at Srikakulam in a Jeep and they reached the hospital between 1 to 1.30 p.m. The deceased was treated in the hospital but unfortunately he died at about 2 p.m. The information regarding the death was given to the police and that the police came to the hospital and recorded the statement Ex. P. 1 given by PW 1. Thus the police machinery was set in motion and investigation proceeded with. The Investigating Officer went to the scene of offence and recorded the statements of PWs 1, 2, 5 and others and prepared the panchanama of sence of offence, he also conducted inquest over the dead body of the deceased and the dead body was sent for post-mortem examination. Post-mortem examination was conducted by PW 7 who happened to be working as Civil Assistant Surgeon, Headquarters Hospital, Srikakulam. He issued post-mortem certificate which is produced on record as Ex.P. 6. On completion of the investigation, charge-sheet was filed.
8. The defence of the accused is of total denial. It is also suggested by the accused that the incident did not take place in the manner suggested by the prosecution. On evidence, the learned Judge found that the prosecution could not establish the offence punishable under Section 302, IPC but found that the fact on record discloses that the accused is liable to be convicted for an offence punishable under Section 304, Part-II, IPC and convicted and sentenced the accused as stated above.
9. There is no dispute that the death of the deceased was homicidal and that is duly proved by the evidence of PWs 6 and 9. PW 9 had conducted inquest over the dead body of the deceased which is produced on record as Ex. P-3. After the inquest was conducted, the dead body of the deceased was sent to PW 7 who had conducted autopsy on 18-8-1996 between 11 a.m. to 2 p.m. and on examination he noticed an incised injury of 1 1/2″ in length and 1/2″ in length and 1/2″ in breadth present 1 1/2″ below the left nipple, margins sharp, blood clots present and it is penetrating into thoracic cavity. Considering the above evidence, we hold that the prosecution proved that the death of the deceased was homicidal.
10. In order to connect the accused with the crime, the prosecution led the evidence of PW 1, PW 2, PW 3 and PW 5 as eyewitnesses to the incident. PW 1 who happened to be the father of the deceased deposed that on the date of incident his son i.e. the deceased along with one coolie had gone to their field for carrying out repairs to the bund and within a short time he also followed his son along with PW 2 and by the time they reached the field, he saw that there was a quarrel between the accused and the deceased and that the accused was trying to cut two date-trees which were standing on the bund in between the field of the accused and the deceased. When the deceased obstructed, the accused tried to hit him but on the intervention of PWs 1 and 2 they were separated. He further deposed that the deceased snatched away the axe from the hands of the accused and threw it away and in the meanwhile the accused escaped from the clutches of PW 2 and stabbed the deceased with a knife on the left side of the chest piercing through lung and heart and caused profuse bleeding injury.
11. The evidence of PW 1 is sufficiently corroborated by Ex. P-1 which was given by him at the police station at about 2.15 p.m. immediately after the death of the deceased. The evidence of PW 1 is further corroborated by the evidence of PW 2 who happened to be the Sarpanch of the village. He also stated that the accused took the knife which was tied around his waist and pierced the same through the left side of the chest causing bleeding injury. The evidence of these two eye-witnesses is further corroborated by the evidence of G. Appala Guruvulu PW 3, an agricultural coolie who had accompanied the deceased to carry out the repairs to the bund. PW 5 is also an eye-witness and he also supported the evidence of stabbing of the deceased by the accused. Therefore, we are of the considered view that the prosecution was able to establish the fact that the accused was responsible for causing the death of the deceased.
12. The second question that arises for our consideration is as to whether the accused was intending to commit murder of the deceased. The learned counsel appearing for the accused/respondent relied on a decision reported in Tholan v. State of Tamil Nadu, in which their Lordships believed that when an accused dealt only one blow with a knife, the offence is not an offence under Section 302, IPC but an offence under Section 304, Part-II, IPC. The intention of the accused has been established by single blow but by giving single blow it was interpreted that the accused is having the knowledge and consequences of his act and, therefore, the accused in the cited case was convicted for the offence under Section 304, Part-II, IPC. The learned counsel for the accused also relied upon another decision reported in Ranjitsinh Chandrasinh Atodaria v. State of Gujarat, AIR 1994 SC 1060 : 1994 Cri LJ 1425 in which the same principle was applied as laid down by their Lordships in the aforesaid decision (supra).
13. Applying the test to the present set of facts, we hold that the accused had inflicted only one stab injury on the left side of chest of the deceased little below nipple causing his death. Therefore, the act of the accused is not an offence punishable under Section 302, IPC but it is one an offence punishable under Section 304, Part-II, IPC. The same view was taken by the learned Addl. Sessions Judge and, therefore, we do not find any reasons to interfere with the order of conviction and sentence recorded by the learned Sessions Judge. Hence the appeal is dismissed confirming the conviction and sentence recorded by the learned Sessions Judge, Srikakulam.