JUDGMENT: (Sri Justice C. Praveen Kumar) Heard Sri G. Vijayasaradhi, learned Counsel appearing for the Appellant and Sri S. Dhushyanth Reddy, learned Public Prosecutor for the State, through Blue Jeans video conferencing APP and with their consent, the appeal is disposed of. 1. Accused 1 and 2 in Sessions Case No.576 of 2014 on the file of XI Additional District and Sessions Judge, Tenali, were tried for offences punishable under Section 302 and Section 302 read with 34 of the Indian Penal Code [‘I.P.C.’] for causing the death of one Darsi Dibbaiah @ Adam [‘deceased’] on 19.04.2014 at about 2:00P.M. at New Bridge, Near Bus Shelter, Bodapadu village of Amarthaluru Mandal. By its Judgment, dated 06.07.2015, the learned Sessions Judge, while acquitting A.2 for the offence punishable under Section 302 read with 34 IPC, convicted A.1 for the offence punishable under Section 302 IPC and sentenced to suffer imprisonment for life and to pay a fine of Rs.1000/-in default to undergo rigorous imprisonment for three months. 2. The substance of the charge against the accused is that on 19.04.2014 at about 2:00P.M. at New Bridge, Near Bus Shelter, Bodapadu village of Amarthaluru Mandal, the accused caused death of Darsi Dibbaiah @ Adam by beating him with a stout stick. 3. The case of the prosecution as unfolded by the prosecution witnesses is as under: i) PW.1 is the brother of the deceased; PW.2 is the wife of the deceased, while PW.3 is the relative of PW.2 and PW.1. PW.4 was examined as a witness to the incident, which occurred in the morning, while PW.5 was examined to speak about the incident, which took place, in the afternoon. ii) The deceased was acting as an elder of caste people in the village. On the morning of 19.04.2014, there was an altercation between the deceased and PW.4 at Ravi Hotel in connection with pesticide issue. During that process, A.1 interfered and pushed the deceased aside, questioning his domination in their caste society and also abusing him. At that point of time, the deceased pushed A.1 due to which A.1 got angry and threatened to see his end by that day. So saying he left the place. After the altercation, the deceased returned home and informed PW.4, who was present in the house, as to what happened at Ravi Hotel. At that point of time, the deceased pushed A.1 due to which A.1 got angry and threatened to see his end by that day. So saying he left the place. After the altercation, the deceased returned home and informed PW.4, who was present in the house, as to what happened at Ravi Hotel. On that day, the deceased wanted to go to Ponnuru to attend his work and asked PW.1 to accompany him due to fear of A.1. PW.1 and the deceased went to Ponnuru and after completion of work, they boarded a RTC bus at Ponnuru and got down at drainage bridge of their village to go to their house. It is said that while they were walking towards their house, A.2 intercepted and started beating the deceased with hands questioning him as to why he beat his father in the morning. Meanwhile, A.1 came with a stick and stating as to why there should be a conversation with his son, beat the deceased on his head with a stick, due to which the deceased tripled down to the ground. When A1 and A.2 were beating the deceased who was lying on the ground, PW.1 raised cries loudly and on hearing the same, PW.3, LW.6-Pratap and LW.7-Chukka Vijay Kumar @ Jakraiah came there. On seeing them, the accused ran away. They called an auto and shifted the injured to Government Hospital, Nidubrolu where the doctor declared him dead. PW.1 went to Amarthaluru police station and lodged a report before PW.8 at 5:30P.M., which came to be registered as a case in Crime No.28 of 2014 for the offence punishable under Section 302 read with 34 IPC. Ex.P.7 is the FIR. iii) PW.9-the Inspector of Police, on receiving information, proceeded to the police station, collected copy of FIR and took up investigation. He then, proceeded to the scene of offence and observed the scene. As it was late night, he posted a guard to preserve the scene of offence. He also proceeded to the Government Hospital, Nidubrolu, verified the dead body and posted a guard at the hospital. On the next day i.e. on 20.04.2014, PW.9 examined the scene of offence in the presence of PW.6 and others and prepared an observation report, which is marked as Ex.P.2. He also got photographed the scene of offence, which are marked as Ex.P.8 and P.9. On the next day i.e. on 20.04.2014, PW.9 examined the scene of offence in the presence of PW.6 and others and prepared an observation report, which is marked as Ex.P.2. He also got photographed the scene of offence, which are marked as Ex.P.8 and P.9. He also prepared a rough sketch of the scene, which is marked as Ex.P.10. Thereafter, he proceeded to Government Hospital, Nidubrolu and conducted inquest over the dead body in the presence of mediators. Ex.P.13 is the inquest report. Ex.P.11 and P.12 are the photographs of the dead body of the deceased. During inquest, he examined PWs.1 to 3 and recorded their statements. Thereafter, the dead body was sent for post-mortem examination. iv) PW.7 the Civil Assistant Surgeon, Community Health Centre, Ponnuru, conducted autopsy over the dead body of the deceased and found only one contusion over occipital region measuring 3 X 2CM, under the scalp on internal examination. He opined that the cause of death was due to head injury followed by respiratory and cardiac arrest. Ex.P.6 is the post mortem certificate. v) PW.9 continued with his investigation, arrested the accused and recorded his confessional statement, which lead to seizure of M.O.1 stick used in the commission of offence under Ex.P.5 mediator’s report. After completion of investigation and after collecting all the necessary documents, he filed a charge-sheet, which was taken on file as P.R.C.No.18 of 2014 on the file of II Additional Judicial Magistrate of First Class, Tenali. 4. On appearance of the accused, copies of documents as required under Section 207 Cr.P.C., came to be furnished. Since the case is triable by Court of Sessions, the matter was committed to the Sessions Court under Section 209 Cr.P.C. Basing on the material available on record, charges as referred to above came to be framed, read over and explained to the accused, to which, the accused pleaded not guilty and claimed to be tried. 5. In support of its case, the prosecution examined PW.1 to PW.9 and got marked Ex.P.1 to Ex.P.13, besides marking M.O.1. After completion of prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses, to which they denied. In support of their plea, no oral was adduced except marking Ex.D.1. 6. Believing the evidence of PW.1, the learned Sessions Judge, while acquitting A.2, convicted A.1. After completion of prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses, to which they denied. In support of their plea, no oral was adduced except marking Ex.D.1. 6. Believing the evidence of PW.1, the learned Sessions Judge, while acquitting A.2, convicted A.1. Challenging the same, the present appeal came to be filed. 7. Sri G. Vijayasaradhi, learned counsel appearing for the appellant mainly submits that since the entire case rests on the solitary testimony of PW.1, the same has to be viewed with suspicious since it is inconsistent with the medical evidence. He submits that the evidence of PW.1 is a complete improvement from what he has stated before the police during investigation. He further submits that the evidence of PWs.3 and 4 also does not inspire confidence as they did not mention the crucial aspects about the cause of the incident, in their 161 Cr.P.C. statement recorded by the police. In any event, he submits that since there is only one injury on the body, he pleads for scaling down of the offence to one under Section 304 Part-II IPC. 8. On the other hand, Sri K. Srinivas Reddy, learned Public Prosecutor opposed the same, contending that it is not the number of injuries that matter, but the nature of injury caused by the accused and the weapon used in the commission of offence has to be taken into consideration for determining of the offence. Coming to the merits of the case, he would submit that there are no reasons to disbelieve the evidence of PW.1 since he lodged the report at the earliest point of time, disclosing the commission of offence. He further submits that the evidence of PW.1 is corroborated by the evidence of PW.3, who was sitting on the old culvert adjacent to the bus stop, which is near the scene of offence. In view of the above, he would submit that the finding of the trial court needs no interference. 9. The point that arises for consideration is, whether the prosecution was able to bring home the guilt of the accused beyond doubt? 10. PW.1 in his evidence deposed about the information furnished by the deceased to him in respect of an incident, which took place on 19.04.2014 at 9:00 A.M. near Ravi Hotel in connection with pesticides. 9. The point that arises for consideration is, whether the prosecution was able to bring home the guilt of the accused beyond doubt? 10. PW.1 in his evidence deposed about the information furnished by the deceased to him in respect of an incident, which took place on 19.04.2014 at 9:00 A.M. near Ravi Hotel in connection with pesticides. His evidence also disclose that A.1 interfered and pushed the deceased aside questioning his domination in their caste society and thereafter the deceased also pushed A.1 due to which A.1 got angry and left the place threatening the deceased to see his end by that day. PW.4 is the person who quarrelled with the deceased. In his evidence, PW.4 deposed that while altercation was going on between him and the deceased, A.1 came and questioned them about the dispute and pushed them. It is said that when the deceased questioned about the altercation, A.1 objected to his interference and while they were altercating, PW.4 left the place. 11. The first part of the incident is spoken to by PW.1 and PW.4. However, the evidence of the Investigating Officer would show that PW.4 did not state before him about the altercation that took place at 9:00 A.M. and that A.1 pushed them; and he coming to know about the incident at a later point of time. The said admission in the evidence of the Investigating Officer, in our view, may not matter much. On the other hand, the evidence of PW.4 gets corroboration from the version of PW.1, with regard to the incident, which took place in the morning between A.1 and the deceased. 12. Coming to the second incident which took place in the afternoon, it is the evidence of PW.1 that on the fateful day after coming home in the morning, the deceased informed about the incident took place at 9:00 A.M., he requested PW.1 to accompany him to go to Ponnuru due to fear in the hands of A.1. Accordingly, PW.1 and the deceased went to Ponnuru and at about 2:00PM both of them returned back to their house. They got down from the RTC bus at drainage bridge of their village and while they were walking, A.2 intercepted and started beating the deceased with hands. Accordingly, PW.1 and the deceased went to Ponnuru and at about 2:00PM both of them returned back to their house. They got down from the RTC bus at drainage bridge of their village and while they were walking, A.2 intercepted and started beating the deceased with hands. At that point of time, A.1 came there armed with sticks and questioned about the conversation by his son (A.2) with the deceased and beat the deceased due to which the deceased tripled down. It is said that after the deceased fell down, A.1 and A.2 beat the deceased, but, however, PW.1 failed to mention the same. 13. The learned counsel for the appellant took us through the evidence of Investigating Officer to show that PW.1 failed to mention certain crucial aspects in 161 Cr.P.C. statement. 14. It is true that PW.1 did not state before PW.9 about the deceased asking him to accompany him to go to Ponnuru due to fear in the hands A.1. (the omission is with regard to the fear of A.1). It is true that PW.1 did not state before PW.9 about A.1 and A.2 beating the deceased when was lying on the ground. He also failed to mention about LW.6 and LW.7 coming to the scene of offence on hearing the cries. These omissions, in our view, may not matter much, since the version of PW.3 being consistent with regard to the incident in question. 15. At this stage, it would be appropriate to refer to the evidence of PW.3, who in his evidence, deposed that at about 2:00P.M., while he was sitting on the old culvert adjacent to the bus stop, he noticed the deceased and PW.1 getting down the bus and walking towards new culvert. At that point of time, A.2 intercepted and pushed the deceased questioning him about the incident which took place in the morning; at that time, A.1 came from behind and hit the deceased with a stick on his head, questioning about the conversation with the deceased. On hearing the sound, PW.3 claims to have gone there and noticed PW.1 trying to rescue the deceased, who tripled down with blood oozing from nose. He also speaks about others reaching the scene of offence and shifting the injured to the hospital. But, PW.3 failed to mention before PW.9-the Investigating Officer about the deceased questioning the interference of A.1. On hearing the sound, PW.3 claims to have gone there and noticed PW.1 trying to rescue the deceased, who tripled down with blood oozing from nose. He also speaks about others reaching the scene of offence and shifting the injured to the hospital. But, PW.3 failed to mention before PW.9-the Investigating Officer about the deceased questioning the interference of A.1. It was also elicited in the evidence of PW.9 that PW.3 failed to mention about he sitting on the old culvert adjacent to the bus stop at 2:00 P.M. and A.2 intercepted and caught hold of the collar of the deceased. 16. It may be true that PW.3 failed to mention about he sitting on a culvert and noticing the incident in question and also about A.2 catching hold of the collar of the deceased. Probably for this reason the learned Sessions Judge gave benefit of doubt to A.2 and acquitted him. But, the evidence of PW.3 is consistent with regard to the role of A.1, which gets corroboration from the evidence of PW.1. Therefore, the participation of A.1 in the incident stands established. 17. At this stage, the learned counsel for the appellant tried to contend that even if the evidence of PW.1 and PW.3 is believed and since there is only one injury on the head of the deceased, it may not amount to an offence under Section 302 IPC. 18. In Mahesh Balmiki v. State of M.P., (2000) 1 SCC 319 , the Hon’ble Supreme Court, while deciding the question as to whether a single blow with a knife on the chest of the deceased would attract Section 302 of the Indian Penal Code, held as under: “……there is no principle that in all cases of a single blow Section 302 Indian Penal Code is not attracted. A single blow may, in some cases, entail conviction under Section 302 Indian Penal Code, in some cases under Section 304 Indian Penal Code and in some other cases under Section 326 Indian Penal Code. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. A single blow may, in some cases, entail conviction under Section 302 Indian Penal Code, in some cases under Section 304 Indian Penal Code and in some other cases under Section 326 Indian Penal Code. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him. In the instant case, the deceased was disabled from saving himself because he was held by the associates of the appellant who inflicted though a single yet a fatal blow of the description noted above. These facts clearly establish that the appellant had the intention to kill the deceased. In any event, he can safely be attributed the knowledge that the knife-blow given by him was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death.” 19. In Pulicherla Nagaraju v. State of A.P., (2006) 11 SCC 444 the Hon’ble Supreme Court, while deciding the case as to whether a case falls under Section 302 or 304 Part I or 304 Part II Indian Penal Code, held as under: “Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters — plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may.” 20. In Singapagu Anjaiah v. State of A.P., (2010) 9 SCC 799 the Hon’ble Supreme Court, while deciding the question whether a blow on the skull of the deceased with a crowbar, would attract Section 302 of the Indian Penal Code, held as under: “In our opinion, as nobody can enter into the mind of the accused, his intention has to be gathered from the weapon used, the part of the body chosen for the assault and the nature of the injuries caused. Here, the appellant had chosen a crowbar as the weapon of offence. He has further chosen a vital part of the body i.e. the head for causing the injury which had caused multiple fractures of skull. This clearly shows the force with which the appellant had used the weapon. The cumulative effect of all these factors irresistibly leads to one and the only conclusion that the appellant intended to cause death of the deceased.” 21. In Ashok Kumar Magabhai Vankar v. State of Gujarat, (2011) 10 SCC 604 , the Hon’ble Supreme Court held as under: “…….the death was caused by single blow on head of the deceased with a wooden pestle. It was found that the accused used pestle with such force that head of the deceased was broken into pieces. This Court considered whether the case would fall under Section 302 or Exception 4 to Section 300 IPC. It is held by this Court that the injury sustained by the deceased, not only exhibits intention of the accused in causing death of victim, but also knowledge of the accused in that regard. It is further observed by this Court that such attack could be none other than for causing death of victim. It is observed that any reasonable person, with any stretch of imagination can come to conclusion that such injury on such a vital part of the body, with such a weapon, would cause death. 22. In Bavisetti Kameswara Rao v. State of A.P., (2008) 15 SCC 725 the Hon’ble Supreme Court held as under: “……It is seen that where in the murder case there is only a single injury, there is always a tendency to advance an argument that the offence would invariably be covered under Section 304 Part II IPC. The nature of offence where there is a single injury could not be decided merely on the basis of the single injury and thus in a mechanical fashion. The nature of the offence would certainly depend upon the other attendant circumstances which would help the court to find out definitely about the intention on the part of the accused. Such attendant circumstances could be very many, they being (i) whether the act was premeditated; (ii) the nature of weapon used; (iii) the nature of assault on the accused. The nature of the offence would certainly depend upon the other attendant circumstances which would help the court to find out definitely about the intention on the part of the accused. Such attendant circumstances could be very many, they being (i) whether the act was premeditated; (ii) the nature of weapon used; (iii) the nature of assault on the accused. This is certainly not an exhaustive list and every case has to necessarily depend upon the evidence available. As regards the user of screwdriver, the learned counsel urged that it was only an accidental use on the spur of the moment and, therefore, there could be no intention to either cause death or cause such bodily injury as would be sufficient to cause death. Merely because the screwdriver was a usual tool used by the accused in his business, it could not be as if its user would be innocuous.” 23. From the judgments of the Hon’ble Supreme Court referred to above, it is very much clear that even in the case of single injury, where the death was caused due to single injury, the court has to see the nature of the injury whether it is on the vital or non-vital part of the body, the weapon used, the circumstances under which the injury was caused the force used in causing the injury and the manner in which the injury was inflicted. 24. In fact, the Hon’ble Supreme Court categorically held that in every case where the death was due to single blow given on a vital part, it cannot be said that there was an intention to cause death. The Hon’ble Supreme Court further held that it depends upon the facts and circumstances of each case. In order to find out the same, it would be appropriate for us to refer to the evidence of the doctor, who conducted post mortem over the dead body of the deceased. 25. PW.7 in his evidence stated that he commenced post mortem examination on 20.04.2014 at 9:00 A.M. and found a contusion over occipital region measuring 3 X 2cm under the scalp. According to him, the cause of death was due to head injury followed by respiratory and cardiac arrest. In the cross-examination, he admits as under: “It is true that the injury possible by fall on hard surface but depending on the force. According to him, the cause of death was due to head injury followed by respiratory and cardiac arrest. In the cross-examination, he admits as under: “It is true that the injury possible by fall on hard surface but depending on the force. It is true an alcoholic may sustain easily the rupture of blood vessels even at the slightest violence to the head. It is true that the weapon like M.O.1 would cause lacerated injury but it more force but by ordinary force it causes only contusion.” 26. A reading of the cross-examination of the doctor would show that if more force is used with M.O.1, it would cause a lacerated injury and if only an ordinary force is used with M.O.1, it causes only a contusion. Since the injury found on the deceased was a contusion, it can be said without any doubt that only an ordinary force was used while causing injury meaning thereby the more force/substantial force was not used at the time of causing the injury. Apart from that the evidence of PW.6, who was examined as panch witness to the scene of offence, admits in his cross-examination that as per the mediators report-Ex.P.2, the blood stains of the deceased were found on the inside edge of the parapet wall of culvert. He further stated that M.O.1 stick was not measured in his presence and that he cannot say whether it is a fresh stick or dried one and there is no special identification marks on M.O.1 to say that the same stick was seized at that time. 27. From the evidence of this witness, a doubt arises as to whether really the stick, which is placed before the court as M.O.1, is the same stick, which was seized. But, that by itself does not lead to any doubt to the version of the eye-witness, more particularly PW.1, PW.3 and PW.5 about the manner in which the incident took place. 28. But, that by itself does not lead to any doubt to the version of the eye-witness, more particularly PW.1, PW.3 and PW.5 about the manner in which the incident took place. 28. Taking into consideration the nature of the weapon used (the evidence being doubtful as to whether M.O.1 was the stick used, the manner in which the injury was caused namely ordinary force leading to only a contusion and the opinion of the doctor that the cause of death was due to hemorrhage, shock due to head injury followed by respiratory and cardiac arrest, we feel that it is a fit case where the conviction of the accused can be scaled down from Section 302 IPC to under Section 304 Part-I IPC. 29. Accordingly, the Criminal Appeal is allowed in part. The conviction and sentence imposed against the appellant in S.C.No.576 of 2014 on the file of XI Additional District and Sessions Judge, Tenali, for offence punishable under Section 302 IPC, vide judgment dated 06.0.2015, is altered to one under Section 304 Part I IPC. For the altered conviction, the appellant is sentenced to undergo rigorous imprisonment for a period of ten years. The remand period, if any, undergone by him during investigation, trial and after conviction, shall be given set off under Section 428 Cr.P.C.