JUDGMENT : C. Praveen Kumar, J. Heard through Video Conference (Blue Jeans App). 2. The appellants, who are A-1 and A-2, preferred this Criminal Appeal under Section 374(2) Cr.P.C. assailing their conviction and sentence imposed by the learned Sessions Judge, Guntur vide judgment, dated 8.7.2015, in Sessions Case No.38 of 2015 for the offence punishable under Section 302 read with 34 I.P.C. wherein they were sentenced to undergo imprisonment for life and to pay a sum of Rs.2,000/-each, in default, to suffer rigorous imprisonoment for a period of two (2) months. 3. Originally, both the appellants were tried for the offence punishable under Section 302 read with 34 I.P.C. for causing the death of one Pawan @ Karnataka (hereinafter, referred to as “the deceased”) on 21.8.2014 at about 9.45 A.M. at 20th kana on Prakasam Barrage of Krishna River, Seethanagaram, Tadepalli by pushing him into Krishna River. 4. The facts in issue are as under: P.Ws.1, 2 and 3 were examined as eye witnesses to the incident while P.Ws.4, 5, 6, 7 and 8 are the official witnesses. On 21.8.2014, at about 9:30 A.M., A-1, A-2 and the deceased were proceeding from Undavalli to Vijayawada in a drunken state quarrelling with each other and irregularly crossing the road at Prakasam Barrage, with regard to payment of Rs.350/-. After passing some distance, P.W.1 followed them, separated them from each other and advised them not to quarrel as the vehicles will be passing through the road and asked them to leave. A van belonging to Pollution Control Board was stationed there. The driver of the said vehicle usually stops the vehicle at that place. The name of the said van driver is Basha, who witnessed the incident and was examined as P.W.3. It is said that during the course of said quarrel, near 20th kana, two persons pushed the third person from the barrage. Seeing the same, P.W.2, who was also proceeding in that direction, went to the said place and saw many people gathered there. One of the persons, who was responsible for pushing, tried to run away but he was caught hold by P.W.2, while the other person jumped into the water from the barrage and escaped. The third person, who was alleged to have been pushed, died on the spot. One of the persons, who was responsible for pushing, tried to run away but he was caught hold by P.W.2, while the other person jumped into the water from the barrage and escaped. The third person, who was alleged to have been pushed, died on the spot. Information about the two persons who pushed the third person into the water, was informed to P.W.1, who was working as Police Constable in Mangalagiri Rural Police Station. Immediately, he apprehended the said person, enquired his particulars and also the name and particulars of the person who jumped and escaped. It was informed to him that there was a quarrel between the person apprehended and the deceased for Rs.350/-and in that regard, they pushed the deceased from the barrage. He brought the apprehended person to the control room; handed him over to the Sub-Inspector and lodged a report mentioning all the details. Ex.P-1 is the said report. Basing on the said report, P.W.7 – Sub-Inspector of Police registered a case in Crime No.336 of 2014 for the offence punishable under Section 302 read with 34 I.P.C. and issued F.I.R. Ex.P-8 is the F.I.R. On receipt of information about the registration of the crime, the Circle Inspector of Police instructed P.W.7 to search for A-2. P.W.7 apprehended A-2. According to him, later, P.W.8 – Circle Inspector of Police took up investigation into the matter. After receiving a copy of the F.I.R., he proceeded to the scene of offence and in the presence of P.W.4 and another, prepared a panchanama of the scene. He observed the dead body on the river bed at 20th kana and also noticed injuries on the body. From the scene of offence, he seized controlled earth and blood stained earth. He obtained finger prints of the deceased for the purpose of establishing his identity. He secured the clues team and a photographer for taking photographs. The photographs along with corresponding C.D was handed over to him by that photographer vide Ex.P-9 -set of photographs (6 in number). He also got prepared a rough sketch of the scene under Ex.P-10. Later on, he conducted inquest over the dead body of the deceased between 1:30 P.M. and 3:30 P.M. Ex.P-3 is the Inquest Report. During inquest, he examined P.Ws.1 to 3, Atupaka Nani and Bitra Venkata Dasu (L.Ws.4 and 5) and recorded their statements. He also got prepared a rough sketch of the scene under Ex.P-10. Later on, he conducted inquest over the dead body of the deceased between 1:30 P.M. and 3:30 P.M. Ex.P-3 is the Inquest Report. During inquest, he examined P.Ws.1 to 3, Atupaka Nani and Bitra Venkata Dasu (L.Ws.4 and 5) and recorded their statements. After inquest, the body was sent for post mortem examination, where P.W.6 – Civil Assistant Surgeon at Government Headquarters Hospital, Mangalagiri conducted post mortem over the dead body of the deceased and issued Ex.P-7 – Post Mortem Certificate. According to him, the cause of death was due to the head injury and due to the blunt force. The evidence of P.W.8 – Circle Inspector of Police also discloses that he secured the presence of P.W.5, who has installed the C.C. camera on the barrage and drawn the C.C. camera footage into a Compact Disk, which is placed on record as Ex.P-6. After effecting arrest of all the accused and collecting necessary documents, a charge sheet came to be filed, which was taken on file as P.R.C.No.28 of 2014 on the file of the learned Additional Junior Civil Judge, Mangalagiri for the offence punishable Section 302 read with 34 I.P.C. against A-1 and A-2. 5. On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C., were supplied to them. As the offences were triable by a Court of Sessions, the case was committed to the Court of the Sessions under Section 209 Cr.P.C. Accordingly, the same was made over to the Court of the learned Sessions Judge, Guntur for trial and disposal in accordance with law. 6. Basing on the material available on record, a charge, as referred to earlier, came to be framed, read over and explained to the accused in Telugu to which, they pleaded not guilty and claimed to be tried. 7. To substantiate its case, the prosecution examined P.Ws.1 to 8 and got marked Exs.P-1 to P-12 and M.Os.1 and 2. After the closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses to which they denied. No oral or documentary evidence was adduced on behalf of the accused. 8. Basing on the evidence on record, the trial Court convicted and sentenced both the accused as mentioned supra. No oral or documentary evidence was adduced on behalf of the accused. 8. Basing on the evidence on record, the trial Court convicted and sentenced both the accused as mentioned supra. Challenging the same, the present appeal came to be filed by them. 9. Sri V.R.Machavaram, learned counsel appearing for the appellants/A-1 and A-2, would contend that there is any amount of doubt with regard to the manner in which the incident took place since P.Ws.1, 2 and 3, who were examined to prove the incident, are chance witnesses and their presence is doubtful. In any event, he would contend that even accepting the case of the prosecution and the findings given by the trial Court, conviction under Section 302 read with 34 I.P.C. is improper. According to him, the incident in question took place in a quarrel between three persons, who were in a drunken condition, and in that process, the deceased fell down from the barrage. Hence, pleads to alter the conviction from Section 302 read with 34 I.P.C. to 304 I.P.C. 10. The same is opposed by the learned Public Prosecutor contending that quarrelling in a drunken condition will not exonerate the accused and as such, the conviction and sentence imposed by the trial Court warrants no interference. 11. The point that arises for consideration is: “Whether the prosecution is able to prove the guilt of the accused for the offence punishable under Section 302 read with 34 I.P.C. beyond all reasonable doubt?” 12. POINT:- As seen from the record, the case mainly rests on the evidence of P.Ws.1 to 3. P.W.1 is the Police Constable, who saw all the three persons proceeding from Undavalli to Vijayawada in a drunken state, quarrelling with each other, and crossing the road irregularly in front of him. It is said that after passing some distance, he followed them and separated them from each other, advised them not to quarrel and also asked them to leave as the vehicles will be passing through the road. 13. P.W.3 is another witness, who keeps his Pollution Checking Van near Prakasam Barrage everyday. According to him, on the date of incident, three boys were coming from Tadepalli side and were proceeding towards the barrage, quarrelling with each other. After crossing the out post, among the three boys, two were pushing the third boy on the road. 13. P.W.3 is another witness, who keeps his Pollution Checking Van near Prakasam Barrage everyday. According to him, on the date of incident, three boys were coming from Tadepalli side and were proceeding towards the barrage, quarrelling with each other. After crossing the out post, among the three boys, two were pushing the third boy on the road. At that time, a Constable from Police Outpost – P.W.1 came there, spoke to those boys, asked them not to quarrel and advised them to leave. Thereafter, those three boys proceeded towards the other end of the barrage. About 15 or 20 minutes later, the passers by informed him that two boys pushed down another boy from the barrage on which himself and P.W.1 went to the said place. By the time they reached, P.W.2 apprehended one boy and on their arrival, handed over that boy to P.W.1. The boy, who was pushed down, was found dead at 20th kana while the third person jumped into the river and escaped. P.Ws.1 and 3 identified those three persons as the persons found quarrelling with each other earlier in the drunken condition. According to him, A-1 and A-2 are the two boys among the three, who were found quarrelling. Though P.W.3 was declared hostile, his evidence, in our view, corroborates the evidence of P.W.1 in all respects mainly with regard to their presence and quarrelling with each other before the incident. 14. A perusal of the evidence of P.W.1 would show that when he enquired A-1 as to why they were quarrelling, he disclosed to him that the deceased owes an amount of Rs.350/-due to which a quarrel ensued between them and during that quarrel, they pushed the deceased from the barrage. It would be useful to extract the evidence of P.Ws.1 and 3 on this aspect, which is as under: “…….I apprehended that one person enquired his particulars who disclosed his name as Mohanara Reddy and the name of the person who escaped is Venkata Subbiah and the name of the person who was pushed from the Barrage and died is Pavan and that they does catering work in Vijayawada one town. When enquired why they were quarreling he said to me that the Pavan owes him Rs.350-00 on that matter a quarrel ensued between them and during that quarrel they have pushed down Pavan from the Barrage……” “………On 21-8-2014 I came to the barrage and van parked there at about 8-45 am, 3 boys were coming from Tadepalli and proceeding towards to Barrage quarreling, after crossing the out post among those three boys two have pushed down the other boy on the road from the barrage. At that a constable from Police outpost by name Vidyasadan (PW1) came there spoke to those three boys asked them not to quarrel and leave. Thereafter, those three boys went by walk on the barrage. 15 or 20 minutes later to it the passers by informed me that two boys have pushed down another boy from the barrage, on which myself and PW1 went to the said place. By the time we reached Pothuru Durgarao (PW2) had already caught hold of one boy and on our arrival he handed over that boy to PW1. The boy who was pushed down was found dead at 20th kana. The boy who was caught by PW2 and the boy who ran away and the boy who died are the above said three boys, whom I have seen quarreling with each other while proceeding towards the barrage. I can identify those two boys. The witness pointed out both the accused no.1 and accused no.2 as those quarreling two boys among the three. The other boy among the two had escaped by jumping from the barrage into the water…..” 15. Before proceeding further, it would be useful to refer to the evidence of P.W.2, who in his evidence, deposed that on 21.8.2014, at 9:40 A.M., he went to Vijayawada with regard to his fish business and was returning on the barrage. He saw three young persons quarrelling on the barrage near 20th kana. He witnessed two of them pushing the third one from the barrage and on seeing the same, he went to that place. Number of people gathered there. Among the two boys, one boy, who tried to escape, was caught whereas the other boy jumped into the river and escaped. It is said that the boy, who was pushed down by the other two, died on the spot. He handed over the person apprehended to a Constable. 16. Number of people gathered there. Among the two boys, one boy, who tried to escape, was caught whereas the other boy jumped into the river and escaped. It is said that the boy, who was pushed down by the other two, died on the spot. He handed over the person apprehended to a Constable. 16. From the evidence of these three witnesses, it is evident that the three young boys, who were in a drunken condition, were quarelling with each other, at about 9:30 A.M. Initially, P.W.1 intervened and separated all three of them and he warned them to be careful, as they were crossing over the road in an irregular manner. Thereafter, all three of them proceeded toward the barrage and it appears that three of them quarrelled once again, which is evident from the evidence of P.W.2. In the quarrel, they pushed the deceased as a result of which, he fell down from the barrage and died on the spot. 17. The trial Court, after considering the evidence available on record and taking into consideration the statement made by the learned Public Prosecutor, came to a conclusion that there was no enmity, grouse, ill-will or mens rea to any of the accused to eliminate the third person. It was also held that neither they planned to eliminate their friend nor made any preparations to kill him. The Court went on to hold that a quarrel ensued between them right from the time they were walking in front of the police sub-control room located at the beginning of the Krishna barrage, which continued till the incident in question occurred. It was also held that there was a scuffle with the deceased as a result of which he was pushed down from the barrage. Holding so, convicted both the accused under Section 302 read with 34 I.P.C. on the ground that the deceased fell down from a great height on the river bed, which is a hard surface, and met his death. The said act unmistakably will give rise to an opinion that the accused knew where they were when the quarrel was going. The bridge being at a great height from the bottom, pushing down a person from the barrage would certainly cause his death. The said act unmistakably will give rise to an opinion that the accused knew where they were when the quarrel was going. The bridge being at a great height from the bottom, pushing down a person from the barrage would certainly cause his death. It would be useful to extract the findings of the trial Court, which read as under: “This Court on considering the facts and circumstances of the case and the evidence adduced first take note of, this no doubt is not a case of the accused having any enmity, grudge against the deceased, nor it is a case of, that they had planned to eliminate their friend, made preparation and killed him. But this is definitely a case, where when a quarrel was ensuing between them right from the time they were walking from in front of the police sub-control room located at the beginning of the Krishna barrage which quarrel continued when they were walking on the bridge while going towards Vijayawada Town, they were scuffling with the deceased and pushed him down from the Krishna barrage, he fell from that great height of the barrage on the river bed on a hard surface and met with death. The said acts of them unmistakably would give rise to opine, they know where they were when the quarrel was going, and that it is a Krishna river bridge at a great height from the bottom, and thereby pushing down a person from the barrage would certainly cause his death, thereby they both intended to kill their friend, which act of them squarely fall within the definition of murder given under Section 300 IPC.” 18. From the findings arrived at by the trial Court, it is very clear that the accused had no mens rea or enmity or ill will against their friend, who died in the incident. As seen from the evidence on record, neither none of them planned to eliminate the deceased nor did they ever thought of killing the deceased. In fact, the record discloses that all of them were in a drunken condition and quarrelling with each other for Rs.350/-, which the deceased was due to A-1. It appears that in that quarrel, they pushed the deceased as a result of which, the deceased fell down from the barrage. In fact, the record discloses that all of them were in a drunken condition and quarrelling with each other for Rs.350/-, which the deceased was due to A-1. It appears that in that quarrel, they pushed the deceased as a result of which, the deceased fell down from the barrage. Merely because the incident happened on the bridge and the deceased was pushed from a great height does not, by itself, lead to an inference that the accused intended to kill the deceased more so, when the incident in question was preceded by a quarrel between them and in the absence of any evidence to show that there was mens rea or ill-will to kill him. In fact, the evidence on record shows that one of the accused jumped into the river from the barrage to escape. Therefore, it is not necessary that one has to invariably die due to jumping from the barrage. 19. In the circumstances and having regard to the evidence on record and the findings given by the trial Court, we feel that the conviction of the accused can be altered from Section 302 read with 34 I.P.C. to Section 304 Part – II I.P.C., as the accused may have knowledge that pushing a person from barrage may lead to his death, but definitely, there is no intention to kill the deceased. 20. In the result, the conviction and sentence recorded by the learned Sessions Judge, Guntur vide judgment, dated 8.7.2015, in Sessions Case No.38 of 2015 against the appellants/A-1 and A-2 for the offence punishable under Section 302 read with 34 I.P.C. are set aside. However, the appellants/A-1 and A-2 are found guilty of the offence punishable under Section 304 Part – II I.P.C., and accordingly, they are convicted and sentenced to undergo rigorous imprisonment for a period of six (06) years and to pay a fine of Rs.300/-, in default to suffer simple imprisonment for a period of one month. The period of remand underwent by them during investigation, trial and after conviction shall be given set off under Section 428 I.P.C. 21. Accordingly, the Criminal Appeal is partly allowed. Miscellaneous petitions pending, if any, in this Criminal Appeal shall stand closed.