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2003 DIGILAW 1066 (AP)

Kindu Balanna v. State Of A. P.

2003-08-22

S.R.K.PRASAD

body2003
S. R. K. PRASAD, J. ( 1 ) THIS criminal appeal is directed against the conviction and sentence of Rigorous imprisonment for seven years and imposition of fine of Rs. 1,000/-, in default of payment of fine, Simple Imprisonment for three months, awarded by the Principal District and sessions Judge, Visakhapatnam, in S. C. No. 86 of 2002. ( 2 ) THE factual matrix that arises for consideration can be briefly stated as follows: the accused Kimudu Balanna is the resident of Seekari Colony, Pedabayalu Mandal and the deceased Kimudu Latchanna is the resident of Velapalem village in Pedabayalu mandal. They are brothers. P. W. 1, Kimudu ninubuddi is the wife of the deceased and elder sister-in-law of the accused. P. W. 2 kimudu Sanyasi is the brother of the accused as well as the deceased. The accused is a vagabond and a truant always committing petty thefts in the village and around the vicinity of Sikaru Panchayath. P. W. 2 and others reprimanded him several times to change his behaviour. He was continuing his attitude by committing thefts and did not heed to their words. On 13-11-2000 the accused committed theft of one pumpkin belonging to his own sister-in-law Kimudu gasamma and sold the same for Rs. 10/- and consumed alcohol. On knowing the same, kumudu Gasamma abused the accused and reported the matter to P. Ws. 1 and 2 and the deceased. On 13-11-2000 during night at 8. 30 p. m. ; the deceased along with his wife and son Dharma Rao came to the house of p. W. 2, where the accused was living with his sickly brother. At that time the accused was also present at the house of P. W. 2. P. Ws. 1 and 2 questioned and admonished the accused about the committing of theft of pumpkin of Kimudu Gasamma. The accused denied the offence and grew wild and decided to eliminate the deceased, who insulted him. When the deceased was returning to his house on the same night along with P. W. 1 and his son, the accused came from behind and hacked on the head of the deceased with an axe with a view to murder him. On seeing the incident, P. Ws. 1, 2 and others took the injured and kept him in the varandah of the house of P. W. 2. The accused flew away with the axe. On seeing the incident, P. Ws. 1, 2 and others took the injured and kept him in the varandah of the house of P. W. 2. The accused flew away with the axe. Kimudu latchanna died having succumbed to the injury. P. Ws. 1, 2 and 3, Kimudu Dharma rao and Vanthari Balanna witnessed the occurrence. On receipt of the complaint from p. W. 1. P. W. 8, Sub Inspector of Police registered the same as Crime No. 25 of 2000 under Section 302 IPC. P. W. 7 conducted autopsy over the dead body of the deceased and issued Ex. P-6 post-mortem certificate. P. W. 9 arrested the accused and filed charge- sheet against the accused after completing investigation for the offence under Sec. 302 ipc before the Mandal Executive Magistrate, pedabayalu. He examined two witnesses, namely, P. W. 1 and Kimudu Dharma Rao and thereupon committed the case to sessions. The Principal District and Sessions judge, Visakhapatnam, held camp court at paderu and conducted trial in this case. He has framed a charge under Section 302 IPC. The accused has pleaded not guilty. He stated that when he was being beaten, he pushed the deceased and he fell down and came into contact with his own axe and died. P. W. 1 is the elder sister-in-law of the accused. She spoke about committing of theft of pumpkin by the accused belonging to another brother- in-law Ramana and her husband at 7. 30p. m. , reprimanding him as to why he committed theft of pumpkin. She also spoke about her husband beating the accused with stick and the accused grew wild at the beating and admonishing by the deceased and bringing out an axe from the house of her brother-in- law and hacking on the head with that axe causing profuse bleeding. P. W. 2 deposes about the quarrel that took place at 8. 00 p. m. , in between the accused and the deceased and the deceased leaving the house and going away. Later, P. W. 1 and other hurriedly came to him and informed him that the deceased was killed. This witness was treated as hostile by the Prosecutor. P. W. 3, Killo Siddeswara rao deposes that on Monday at about 8. 30 p. m. , the deceased came to the house of p. W. 2, who was bedridden at that time. The accused was also present. This witness was treated as hostile by the Prosecutor. P. W. 3, Killo Siddeswara rao deposes that on Monday at about 8. 30 p. m. , the deceased came to the house of p. W. 2, who was bedridden at that time. The accused was also present. After seeing P. W. 2, he questioned the accused as to why he had stolen a pumpkin belonging to their sister- in-law, whose husband died long back. The deceased not only reprimanded the accused by saying that the act of the accused diminished the family prestige, but it was inexcusable to steal a pumpkin belonging to a poor lady who was a widow. It is also his version that the deceased beat the accused with a small stick twice or thrice. After beating the accused, the deceased was coming out towards his house. When the deceased was in front of his house, the accused came with an axe, M. O. I and hacked the deceased on the head. Immediately, the deceased fell down. At that time he was taking his food on the varandah. The wife and son of the deceased and others shifted him to the house of P. W. 2 where he succumbed to injuries. It is also his version that himself, Balanna and suddanna caught hold the accused and tied him before shifting him to the house of p. W. 2. The accused was tied on the varandah of Buddanna. The accused dropped the axe near the place and he also procured the axe and kept by the side of the accused. It is also his version that there was no electricity supply and it was pitch darkness during that period. P. W. 2 was suffering with acute tuberculosis. P. W. 4, Vantari Balanna deposes that he shifted to Sikaru colony about 10 years back. The accused is the younger brother to the deceased and to P. W. 2. He knew P. Ws. 1 to 3. It is also his version that he knew one Gasamma who was sister-in-law to the accused and deceased. The deceased was residing in Velapalem and he was a cattle grazer, whereas the accused is a truant and at times he commits small thefts like theft of vegetables, theft of fowls, theft of utensils etc. His house is opposite to the house of P. W. 3. The deceased was residing in Velapalem and he was a cattle grazer, whereas the accused is a truant and at times he commits small thefts like theft of vegetables, theft of fowls, theft of utensils etc. His house is opposite to the house of P. W. 3. It is his further version that on Monday about one year eight months back the deceased with his wife and son came to the house of P. W. 2 to see him as p. W. 2 was suffering with T. B. , and was bedridden. The accused was residing with p. W. 2 in his house. After enquiring the health of P. W. 2, the deceased picked up a quarrel with the accused on the ground mat the accused had stolen a pumpkin belonging to Gasamma prior to the occurrence. The deceased rebuked the accused that the accused was not forbearing commission of thefts and stealing a pumpkin belonging to a widowed lady who was no other than their own sister-in-law and it was not excusable. After reprimanding the accused, the deceased along with his wife and son Dharma Rao were coming out of the house, when they reached in front of the house of P. W. 3, the accused came behind with an axe like M. 0. 1 and hacked on the head of the deceased causing bleeding injury and the deceased fell down in a pool of blood. The son of the deceased Dharma Rao shouted and cried loudly uttering that the accused hacked the deceased to death. After hearing the cries of dharma Rao, he came out and saw the deceased died in a pool of blood while p. Ws. 1,3 and the son of P. W. 1 were present. It is also his version that that he was holding the accused and shifting of the injured to the house of P. W. 2, but the injured was dead. P. W. 5 Setty Lakshmana deposes about the theft of two chickens one week prior to the incident. He also speaks that the accused frequently committing thefts in the village and the aggrieved people raising the same in the village panchayat. P. W. 5 Setty Lakshmana deposes about the theft of two chickens one week prior to the incident. He also speaks that the accused frequently committing thefts in the village and the aggrieved people raising the same in the village panchayat. P. W. 6 Seekara Sanyasi dora deposes about giving the advise to p. W. 1 to give a report to the V. A. O. , and also acting as one of the mediators and observation of the scene and the seizing of blood stained earth in front of the house of p. W. 3. Ex. P-3 is the scene of observation report. M. 0. 2 is the blood stained earth. He also speaks about the holding of inquest ex. P-4 is the inquest report. It is also his version that the accused surrendered before the police. P. W. 7 is Dr. K. Raghava Reddy speaks about the conduction of post-mortem examination over the dead body of the deceased and finding the following external injuries: 1. Spindle shaped incised wound of 6x3 x 3 c. m. over the right front parietal region of scalp, directed anteroposteriorly with failing of both ends. Margins are smooth, even, clean cut and averted. The skin subcutaneous tissues, galia, skull and meninges are cut to the depth of the wound. Brain tissue is visible. No abrasions are seen on the edges of wound. No foreign particles are seen in the wound. He was of the opinion that the scalp injury might have been caused by a sharp weapon like M. 0. 1. On opening skull, he found the frontal parietal bone is fractured antero-posteriorly along the line of external scalp wound. The outer table is clean cut whereas the inner table shows multiple fragments, which are driven inwards into the brain tissue causing laceration. Fractured ends are red in colour. He issued Ex. P-6 post-mortem examination report. P. W. 8, Y. V. Naidu deposes about P. W. 1 giving Ex. P-1 report alleging that the accused killed her husband with an axe. Immediately, he registered the same as Crime No. 25 of 2000 under section 302 IPC and sent the express FIR to all the concerned. Ex. P-7 is the original FIR. P. W. 9 was the Inspector of Police, Paderu from December, 1999 to July,2002. P-1 report alleging that the accused killed her husband with an axe. Immediately, he registered the same as Crime No. 25 of 2000 under section 302 IPC and sent the express FIR to all the concerned. Ex. P-7 is the original FIR. P. W. 9 was the Inspector of Police, Paderu from December, 1999 to July,2002. He speaks about taking over the investigation, visiting the scene of offence, conducting of inquest and drafting of observation report. He prepared Ex. P-13 rough sketch and sending the material objects to the Forensic Science laboratory on 20-11-2000. Ex. P-8 is the FSL report. He also speaks about the filing of chargesheet. After the trial, the Principal district and Sessions Judge found the accused guilty for the offence punishable under section 304 Part II IPC and convicted and sentenced the accused to undergo Rigorous imprisonment for seven years and also imposed a fine of Rs. 1000/-, in default of payment of fine, Simple imprisonment for three months. Aggrieved by the same, the accused preferred this criminal appeal. ( 3 ) IT has to be seen whether the prosecution has proved the guilt of the accused beyond all reasonable doubt for the alleged offence under Section 304 Part II IPC. This case arises under the Code of Criminal Procedure, 1898 (old Code ). I state that in spite of Article 50 of the Constitution of India contemplating separation of judiciary from the execute, no steps were taken to comply with the constitutional mandate. With the result, there is no separation of judiciary from the executive in the agency areas and the executive Magistrates attend to judicial work also. It is high time that the Government should think about its responsibility and comply with the constitutional mandate provided under Article 50 of the Constitution it shall see that separation of executive is made from the judiciary in agency areas also. The cases in the agency areas are being handled by the Executive Magistrates without having any access or meaningful training regarding the judicial work. More over, the provisions of old Code are still being applied in the agency areas. This Act is said to be not on modern lines and it led to modification by passing the Code of Criminal procedure, 1973 (new Code ). More over, the provisions of old Code are still being applied in the agency areas. This Act is said to be not on modern lines and it led to modification by passing the Code of Criminal procedure, 1973 (new Code ). In spite of passing of new Code, the procedure contemplated under the old Code is still being applied to tribals in the agency areas. Obviously, the trials conducted for the non- tribals in plain areas is quite different from the trials conducted for the tribals in agency areas. It is not known why the said discrimination is still continued. This Court can only express its displeasure in following the old Code even after its repeal under the new Code and is made applicable to the plain areas where some tribals and non- tribals also reside. It is for the legislature to take note of the same and see that proper justice is rendered to the tribals in agency areas without showing any discrimination in following the procedure during the conduction of trials committal by Magistrates as well as by Sessions Judges. I have perused the record. The committal proceedings passed by the Sub Divisional Magistrate under Section 207 of the Code of Criminal procedure, 1898 are not in accordance with the provisions specified in Section 207-A of the Code. Section 207-A of the old Code reads as follows:- "section 207-A: Procedure to be adopted in proceedings instituted on police report: (1) When, in any proceeding instituted on a police report, the Magistrate receives the report forwarded under Section 173, he shall, for the purpose of holding an inquiry under this section, fix a date which shall be a date not later than fourteen days from the date of the receipt of the report, unless the Magistrate, for reasons to be recorded, fixed any later date. (2) If, at any time before such date the officer conducting the prosecution applies to the Magistrate to issue a process to compel the attendance of any witness or the production of any document or thing, the Magistrate shall issue such process unless for reasons to be recorded, he deems it unnecessary to do so. (2) If, at any time before such date the officer conducting the prosecution applies to the Magistrate to issue a process to compel the attendance of any witness or the production of any document or thing, the Magistrate shall issue such process unless for reasons to be recorded, he deems it unnecessary to do so. (3) At the commencement of the inquiry, the Magistrate shall, when the accused appears or is brought before him, satisfy himself that the documents referred to in section 173 have been furnished to the accused and if he finds that the accused has not been furnished with such documents or any of them, he shall cause the same to be so furnished. (4) The Magistrate shall then proceed to take the evidence of such persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the offence alleged; and if the Magistrate is of opinion that it is necessary in the interests of justice to take the evidence of any one or more of the other witnesses for the prosecution, he may take such evidence also. (5) The accused shall be at liberty to cross-examine the witnesses examined under sub-section (4), and in such case, the prosecutor may re-examine them. (6) When the evidence referred to in subsection (4) has been taken and the magistrate has considered all the documents referred to in Section 173 and has, if necessary, examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him and given the prosecution and the accused an opportunity of being heard such magistrate shall, if he is of opinion that such evidence and documents disclose no grounds for committing the accused person for trial, record his reasons and discharge him, unless it appears to the magistrate that such person should be tried before himself or some other magistrate, in which case he shall proceed accordingly. (7) When, upon such evidence being taken, such documents being considered, such examination (if any) being made and the prosecution and the accused being given an opportunity of being heard, the Magistrate is of opinion that the accused should be committed for trial, he shall frame a charge under his hand, declaring with what offence the accused is charged. (7) When, upon such evidence being taken, such documents being considered, such examination (if any) being made and the prosecution and the accused being given an opportunity of being heard, the Magistrate is of opinion that the accused should be committed for trial, he shall frame a charge under his hand, declaring with what offence the accused is charged. (8) As soon as such charge has been framed, it shall be read and explained to the accused and a copy thereof shall be given to him free of cost. (9) The accused shall be required at once to give in, orally or in writing, a list of the persons, if any, whom he wishes to be summoned to give evidence on his trial: provided that the Magistrate may, in his discretion, allow the accused to give in his list or any further list of witnesses at a subsequent time; and, where the accused is committed for trial before the high Court, nothing in this sub-section shall be deemed to preclude the accused from giving, at any time before his trial to the Clerk of the State a further list of the persons whom he wishes to be summoned to give evidence on such trial. (10) When the accused, on being required to give in a list under sub-section (9), has declined to do so, or when he has given in such list, the Magistrate may make an order committing the accused for trial by the High Court or the Court of Session, as the case may be, and shall also record briefly the reasons for such commitment. (11) When the accused has given in any list of witnesses under sub-section (9) and has been committed for trial the magistrate shall summon the witnesses included in the list to appear before the court to which the accused has been committed: provided that where the accused has been committed to the High Court, the magistrate may, in his discretion, leave such witnesses to be summoned by the clerk of the State and such witnesses may be summoned accordingly:- provided also that if the Magistrate thinks that any witness is included in the list for the purpose of vexation or delay, or of defeating the ends of justice, the magistrate may require the accused to satisfy him that there are reasonable grounds for believing that the evidence of such witness is material, and if he is not so satisfied, may refuse to summon the witness (recording his reasons for such refusal), or may before summoning him require such sum to be deposited as such Magistrate thinks necessary to defray the expense of obtaining the attendance of the witness and all other proper expenses. (12) Witnesses for the prosecution, whose attendance before the Court of Session or high Court is necessary and who appear before the Magistrate shall execute before him bonds binding themselves to be in attendance when called upon by the Court of session or High Court to give evidence. (13) If any witness refuses to attend before the Court of Session or High Court, or execute the bond above directed, the magistrate may detain him in custody until he executes such bond or until his attendance at the Court of Session or high Court is required, when the magistrate shall send him in custody to the Court of Session or High Court as the case may be. (14) When the accused is committed for trial, the Magistrate shall issue an order to such person as may be appointed by the State Government in this behalf notifying the commitment, and stating the offence in the same form as the charge; and shall send the charge, the record of the inquiry and any weapon or other thing which is to be produced in evidence, to the Court of Session or where the commitment is made to the High Court, to the Clerk of the State or other officer appointed in this behalf by the High court. (15) When the commitment is made to the High Court and any part of the record is not in English, an English translation of such part shall be forwarded with the record. (16) Until and during the trial, the magistrate shall subject to the provisions of this Code regarding the taking of bail, commit the accused by warrant to custody". It is clearly stated in clause (7) of section 207-A of the Code that the Magistrate has to frame a charge whenever he finds that the case has to be committed for trial under his hand. As soon as the charge is framed, it has to be read and explained to the accused and a copy thereof shall be given to him free of cost and the same is contemplated under clause (8 ). In clause (9) the accused has to give orally or in writing a list of persons, if any, whom he wishes to be summoned to give evidence on his trial. The procedure contemplated under Section 207-A is totally ignored by the committal Magistrate in this case. It shows that the Executive Magistrate needs sufficient training before they are etrusted with judicial work. The non- missing of charges and recording of the plea the accused and not providing the list of witnesses and failure to ask the accused to rnish his own list of witnesses are some of the circumstances which compel this Court to observe that the Executive Magistrates, who are dealing with the judicial work, need judicial training under the guidance of this court for proper delivery of justice to the tribals in accordance with the old Code. I am also to observe that justice rendered to the persons should be the same irrespective of the fact whether they belong to tribals in agency areas or plain areas or whether they belong to richer class or poorer sections. There is no need to follow the old Code. When is found to be not suitable to apply. It shows that much attention is not paid to the tribals as they are voiceless and have no knowledge about the legal aspects. Time and again, this Court has observed that the committal proceedings mentioned under the old Code is outmoded and consumes colossal waste of time in proceeding with the case. It shows that much attention is not paid to the tribals as they are voiceless and have no knowledge about the legal aspects. Time and again, this Court has observed that the committal proceedings mentioned under the old Code is outmoded and consumes colossal waste of time in proceeding with the case. That is the reason why the new Code has been introduced bringing about the changes in committal proceedings. I state once again that the committal order passed by the executive Magistrate in this case is not in accordance with the provisions of Sec. 207-A of the old Code. In any view of the matter, the committal proceedings shall not affect the trial, which has already taken place. It is for the District and Sessions Judge to peruse the committal proceedings and immediately draw the attention of the concerned magistrate to rectify the mistake. Perhaps that has not been done in this case. The executive Magistrates continues to pass committal orders in violation of the express statutory provisions of Section 207-A of the old Code. ( 4 ) COMING to the facts and contentions canvassed by the learned counsel appearing for the appellant, it is mainly contended that the incident is said to have taken place during night when it was pitch dark and hence there is no possibility of witnessing the incident. It is also contended by the learned counsel that p. W. 1 cannot be a eye-witness as it is stated that one Siddeswar Rao informed her that the accused hacked the deceased and the deceased fell down. It is also contended that p. W. 2 is also not an eye-witness to the incident. No doubt there is much force in the said contentions. P. W. 1 has stated in the cross-examination that one Siddeswar Rao came to the house and informed that the accused hacked on the head of the deceased and the deceased fell down and immediately she rushed to the village. If the entire evidence is judged, it is clear that she learnt the hacking only through Siddeswar Rao. But in the evidence P. W. 1 has stated that on Monday after grazing the cattle herself and her husband came to the house of P. W. 2. She also spoke about the incident of committing of theft of pumpkin belonging to another brother-in-law Ramanna. But in the evidence P. W. 1 has stated that on Monday after grazing the cattle herself and her husband came to the house of P. W. 2. She also spoke about the incident of committing of theft of pumpkin belonging to another brother-in-law Ramanna. The narration of bringing the accused an axe from the house of her brother-in-law and hacking on the head of the deceased cannot be believed, since she might be giving the version given out by Siddeswar Rao. Coming to the evidence of P. W. 2, Kimudi Sanyasi, who is said to be an eye-witnesses, he has stated in the cross-examination that he has not seen the accused hacking the deceased. He did not see M. O. 1 either in the hands of the accused or in the hands of the deceased. This witness was treated as hostile. P. W. 3 is Killo siddeswara Rao. He is said to have witnessed the incident. According to P. W. 1, he is the person who informed about the incident. This witness stated during cross-examination that he heard about the verbal clash in between the accused and the deceased. That means he did not witness the verbal clash. What he witnessed was that while he was taking food in the varandah, the incident of hacking took place with M. O. 1. Thereafter, himself, Balanna and Suddanna caught hold of the accused and tied him before shifting him to the house of P. W. 2. The accused was tied on the varandah of Buddanna. The accused dropped the axe near the place and he procured the axe and kept by the side of the accused. This witness has seen the accused with an axe in his hand. He also heard the verbal clash in between the accused and the deceased. P. W. 4 is Vantari Balanna. According to his version, he knew P. Ws. 1 to 3 and the deceased as well as the accused. He stated about the commission of theft of pumpkin by the accused from the field of one Gasamma who was sister-in-law of the accused. According to his version the accused commits small thefts like theft of vegetables, theft of fouls, theft of utensils etc. He categorically states that his house is situated opposite to the house of P. W. 3 nearby the house of P. W. 2. According to his version the accused commits small thefts like theft of vegetables, theft of fouls, theft of utensils etc. He categorically states that his house is situated opposite to the house of P. W. 3 nearby the house of P. W. 2. He also speaks that the deceased with his wife and son came to the house of P. W. 2 to see him as he was suffering with T. B. The accused was residing with p. W. 2 in his house. After enquiring the health of P. W. 2, the deceased picked up a quarrel with the accused on the ground that the accused had stolen a pumpkin belonging to Gasamma prior to the occurrence. The deceased rebuked the accused that the stealing of pumpkin belonging to a widowed lady, who was no other than their own sister- in-law was not excusable. It is further his version that after reprimanding the accused, the deceased along with his wife and son dharma Rao were coming out of the house and when they reached in front of the house of P. W. 3, the accused came behind with an axe like M. O. 1 and hacked on the head of the deceased causing bleeding injury and the deceased fell down in a pool of blood. At that time P. W. 1, P. W. 3 and the son of P. W. 1 were present. He tied the accused immediately and he was holding the axe still. It is also elicited that his entrance is towards east opposite to the house of P. W. 3. The entrance door of the house of P. W. 2 is towards east. It is also elicited during his evidence that he has taken a country light (Buddi deepam) and found the axe in that light. If the entire evidence of P. Ws. 1 to 3 and 4 is judged, there is corroboration forthcoming regarding the deceased and P. W. 1 visiting the house of p. W. 2 to enquire about his health. It is also clear from the evidence that some quarrel took place in between the deceased and the accused regarding the alleged theft of pumpkin belonging to Gasamma, who was another sister-in-law of the accused. It is also clear from the evidence that they have not witnessed the hacking. But there is the evidence of P. Ws. It is also clear from the evidence that some quarrel took place in between the deceased and the accused regarding the alleged theft of pumpkin belonging to Gasamma, who was another sister-in-law of the accused. It is also clear from the evidence that they have not witnessed the hacking. But there is the evidence of P. Ws. 1 to 3 and 4 that prior to the incident quarrel took place and the deceased beat the accused with a stick. The plea of the accused at the time of examination of the charge is that the deceased beat him with stick during quarrel and he pushed him and he came into contact with the axe and sustained the injury. How far the said version is truthful and it has to be judged from several factors. The learned counsel for the appellant has drawn my attention to the facts that the axe belongs to P. W. 1 and they have kept it at that place. It is also contended that there was no electricity supply. More over, P. W. 3 alone came and informed about the alleged hacking. Even according to p. W. 3 Siddeswara Rao, he heard verbal clash in between the accused and the deceased. It is also contended by the learned counsel for the appellant that there is no possibility of witnessing the incident as the entrance of the house of P. W. 2 is towards east, whereas his entrance is towards north. That is the reason P. W. 3 has stated that he is taking food in the varandah it might not be possible for him to witness the hacking. But immediately he rushed there and found the accused armed with axe and he caught hold of the accused along with Balanna and suddanna and tied him before shifting him to the house of P. W. 2. At that time he found the deceased with profuse bleeding from the injury. The answer to the contention raised by the learned counsel for the appellant about the pitch darkness is given by P. W. 4 as they saw the accused holding axe in the country light i. e. , buddi deepam. Hence, it cannot be said that the accused has not used the weapon. The answer to the contention raised by the learned counsel for the appellant about the pitch darkness is given by P. W. 4 as they saw the accused holding axe in the country light i. e. , buddi deepam. Hence, it cannot be said that the accused has not used the weapon. In fact, his presence at the scene is admitted at the time of charge and the witnesses said that he was there in the house of P. W. 2 and there was quarrel in between the deceased and the accused and the deceased beat the accused with a stick. It is not in dispute that accused resides with p. W. 2. There is no evidence forthcoming regarding the version given out by the accused. It is clear from the evidence of p. Ws. 3 and 4 that they have noticed the accused holding of axe soon after the incident when they rushed to the scene and the deceased was found in the pool of blood. This was observed through country light as can be seen from the evidence of P. W. 4. There is no contrary evidence in this case. The entire thing depends upon the circumstantial evidence, namely, the quarrel that ensued prior to the incident and the beating of the accused by the deceased and the axe being found in the hands of the accused soon after the incident and the deceased was being found in pool of blood and P. Ws. 3 and 4 apprehending the accused with the weapon in his hand. They conclusively point out the to guilt of the accused. The motive is the quarrel in respect of the alleged theft of pumpkin belonging to gasamma and also the selling it away for drinking and the beating of the deceased with a stick after due admonition. There are no two views possible or attributable to the incident. All the above circumstances point out to the accused with certainty that he alone could have committed the offence. ( 5 ) COMING to the aspect of inquest, P. W. 9 speaks about the conduction of inquest. Inquestreport can be looked to know whether the death is caused due to homicide or suicide. Ex. P-4 when read along with the evidence of p. W. 9 can only lead to one conclusion that death occurred only due to injury sustained. ( 5 ) COMING to the aspect of inquest, P. W. 9 speaks about the conduction of inquest. Inquestreport can be looked to know whether the death is caused due to homicide or suicide. Ex. P-4 when read along with the evidence of p. W. 9 can only lead to one conclusion that death occurred only due to injury sustained. Hence, it is only homicidal death and not suicidal death. ( 6 ) IT is next to be seen whether the medical evidence supports the version of witnesses, namely, sustaining of injury due to axe. P. W. 7, Dr. K. Raghava Reddy, examined the dead body of the deceased Kimudu latchanna on 16-11-2000 at 3. 00 p. m. He was of the opinion that the injury might have been caused by a sharp weapon like M. O. 1. On opening skull, he found the front parietal bone is fractured antero posteriorly along with the line of external scalp wound. The outer table is clean cut whereas the inter table shows multiple fragments which are driven inwards into the brain tissue causing laceration. Fractured ends are red in colour. Meninges are cleanly cut along the line of external wound and fractured bone on right front parietal region. Cerebral vessels are cleanly cut with blackish fluid blood in the lacerated brain tissuse. Brain is putrefied. Fracture is ante-mortem in nature and might have been caused by a sharp weapon. The injury found on the dead body is sufficient to cause death. The time of death would have been 55 to 60 hours prior to his examination. The medical evidence amply probabilise and suggested the usage of sharp weapon like m. O. 1, which caused the injuries. Hence, the evidence given by the P. Ws. 1 to 4 is supported by medical evidence. The inquest report only probabilise the homicidal death. There is no motive for P. Ws. 1, 3 and 4 to speak falsehood. The version given by P. W. 3 only shows that P. Ws. 1 and 2 and the deceased were present at that time at the house of P. W. 2 and the incident took place. The fact that there was pitch darkness is dispelled by the evidence of P. W. 4 that he saw accused with axe with the country light. 1 and 2 and the deceased were present at that time at the house of P. W. 2 and the incident took place. The fact that there was pitch darkness is dispelled by the evidence of P. W. 4 that he saw accused with axe with the country light. More over, the accused himself has stated that he was present at the scene and there was a quarrel in between them and he pushed the deceased who fell on the axe. On reappraisal of the entire evidence, I find the version given out by the prosecution regarding the injury caused to the deceased is probablised by the circumstantial evidence coupled with medical evidence. The lower court has rightly come to the conclusion regarding the finding of guilt of the accused under Section 304 Part n IPC, as he never intended to kill the deceased by giving a blow. But, he has got knowledge by using the said sharp edged weapon there is a possibility of causing death. Even assuming that the accused has got right of private defence, he has no right to cause grievous hurt which led to death when he was being beaten with a stick. In any view of the matter, the offence certainly falls under Section 304 part II IPC. The accused is said to be in custody till 15-11-2000. The maximum punishment awardable under Section 304 part II IPC is ten years. The Principal District and Sessions Judge has convicted and sentenced the accused to undergo Rigorous imprisonment for seven years and ordered to pay a fine of Rs. 1000 / -. The accused is said to be an unmarried person. It is alleged by the prosecution and also proved through the evidence of P. Ws. 1 to 5 that he was in the habit of committing thefts. Imposing sentence of Rigorous Imprisonment for five years will meet the ends of justice in this case after taking into consideration the fact that the incident took place due to petty quarrel amongst the brothers. ( 7 ) TO sum up, I find that the circumstantial evidence placed before the Court amply points out finger towards the guilt of the accused and the accused alone has committed the offence and the prosecution has been able to prove the same beyond all reasonable doubt. ( 7 ) TO sum up, I find that the circumstantial evidence placed before the Court amply points out finger towards the guilt of the accused and the accused alone has committed the offence and the prosecution has been able to prove the same beyond all reasonable doubt. I also find that the committal proceeding is not passed by the Executive magistrate properly. The jail authorities are directed to give set off the period of custody undergone by the accused from out of the sentence since the old Code did not empower the Court to give the set off in respect of period of custody from out of the sentence. Hence, the conviction and sentence of rigorous Imprisonment for seven years ordered by the Principal District and Sessions judge, Visakhapatnam, in S. C. No. 86 of 2002 against the accused is reduced to Rigorous imprisonment for five years while setting aside the imposition of fine amount. The jail authorities shall give set off for the period of custody undergone by the accused. ( 8 ) THE criminal appeal is partly allowed accordingly.