JUDGMENT
P.S. Narayana, J.
1. Heard the learned Additional Public Prosecutor.
2. This Criminal Appeal is filed against the order of acquittal recorded in Sessions Case No. 171 of 1996 on the file of the Assistant Sessions Judge, Sangareddy.
3. Learned Additional Public Prosecutor would contend that the learned Judge should accept the evidence of P.Ws.1 to 7, who had deposed that at the instigation of A-2 and A-3, A-1 lifted and had thrown down the deceased and in the light of clear evidence available on record, acquittal recorded by the learned Judge cannot be sustained.
4. The Circle Inspector of Police, Narayankhed, filed charge sheet against the accused for the offence under Section 304 read with Section 109 of the Indian Penal Code. The case of the prosecution is that the Sub-Inspector of Police, Afzalgunj, Hyderabad registered a case on the strength of the death summary report received from Superintendent, Osmania General Hospital, Hyderabad. The inquest over the dead body of the deceased Budala Laxmaiah was done in the presence of mediators Ramulu and Konaiah and the witnesses were examined and their statements were also recorded. The dead body of the deceased was handed over to Dr. P.H. Harikrishna, M.D.D.F.M., Osmania General Hospital, Afzalgunj, Hyderabad for conducting autopsy and after conducting autopsy, he issued certificate stating that due to head injury with SUBWXATION OF CERVICAL SPINE WITH C4-C5 the deceased Laxmaiah died. On receipt of C.D. file in Crime No. 153 of 1994 under Section 174 of the Code of Criminal Procedure on 15.04.1994 a case in Crime No. 18 of 1994 under Section 174 of the Code of Criminal Procedure had been registered by Sub-Inspector of Police, Sirgapur and he visited Mardi village and examined the witnesses and recorded their statements and also conducted scene of offence panchanama in the presence of mediators and drawn rough sketch map of the scene and altered the section of law to Section 304 and 109 of the Indian Penal Code and sent express F.I.Rs to all concerned. The learned Judicial Magistrate of First Class, Narayankhed had committed the matter to the Court of Session, which was registered as Sessions Case No. 171 of 1996 and the same was made over to the Assistant Sessions Judge at Sangareddy. The learned Judge recorded the evidence of P.Ws.1 to 14 and Exs. P1 to P9 were marked and on appreciation of evidence, the learned Judge recorded an acquittal. Aggrieved by the same, the State had preferred the present appeal.
5. It is not in controversy that on 11.4.1994 on Ugadi festival in Murdi village people celebrated wrestling competition and the game was completed at 4 P.M. At 4-30 P.M. accused No. 1 and deceased Laxmaiah were allowed to wrestle. While so, A1 forcibly thrown the deceased on the ground, as a result he received injuries and he! was unable to get up. Then A1 sat on his chest and started blowing fists on his chest and in the meanwhile A2 and A3 instigated A1 and thereafter due to injuries the deceased Laxmaiah died. No doubt, the defence is one of total denial. Findings in detail had been recorded by the learned Judge commencing from para 10 and the other evidentiary had been discussed at length at paras 11, 12 and 13 and ultimately acquittal had been recorded.
6. It appears the earliest version given by the relatives of the deceased is that he fell down from a tree and while appreciating the evidence available on record also this aspect had been taken into consideration by the learned Judge. Apart from this aspect of the matter when the very version of the prosecution is that during the competition in relation to wrestling, the incident had happened and in view of the reasons recorded by the learned Judge in detail ultimately giving benefit of doubt, this Court is of the considered opinion that the requisite mens rea for establishing an offence under Section 304 of the Indian Penal Code had not been established. It is needless to say that when the main offence itself cannot be sustained the charge under Section 109 of the Indian Penal Code also cannot be sustained and in view of the reasons recorded in detail by the learned Judge, this Court is of the considered opinion that there are no reasons to express different opinion on the evidence available on record and hence the said findings are hereby confirmed.
7. Accordingly, the criminal appeal shall stand dismissed.