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2022 DIGILAW 1333 (AP)

G. Jagadish, Vizianagaram v. P. P. , Hyd.

2022-11-18

M.GANGA RAO, T.MALLIKARJUNA RAO

body2022
JUDGMENT T.Mallikarjuna Rao, J. - The accused in S.C. No.162 of 2012 is the appellant herein. He was tried for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, 'I.P.C.'). By its Judgment dated 07.08.2015, the learned II Additional Sessions Judge, Parvathipuram, convicted the accused for the offence punishable under Section 302 IPC and accordingly sentenced him to suffer rigorous imprisonment for life and to pay a fine of Rs.500/- in default to suffer rigorous imprisonment for 3 months. 2. The gravamen of the charge against the accused is that, on 30.05.2010 at about 5.30 PM at Gunnathotavalasa Village, he beat his father-Venkata Ramana, intentionally with a casuarina stick (Sarugudu Karra) on the head and caused bleeding injuries. The injured was shifted to Government Hospital and succumbed to injuries on 01.06.2010 at 7.00 PM, and the accused committed murder of his father. 3. In brief, the prosecution's case is that the accused is a resident of Gunnathotavalasa Village and lives by doing coolie work. The deceased is the father of the accused. About 3 years back, the deceased family maintained a tea stall near the N.C.S. Sugar factory, and L.W.5 Sumalatha maintained a tea stall nearby then. The accused fell in love with Sumalatha, and their marriage was performed. Later they shifted their family to Gowdu street, Bobbili. The deceased-Venkata Ramana, tried to outrage the modesty of the wife of the accused several times. On that, Sumalatha went away to her parent's house. On convincing by the accused, Sumalatha was brought back to their house by the accused. Even then, the deceased did not change his attitude. Later they shifted their residence to the Indiramma colony from Gunnathotavalasa Village. On 29.05.2010 at 9.30 PM, the accused and his wife slept on the house's terrace; the deceased went thrice and observed them. On noticing the same, the accused decided to kill the deceased. On 30.05.2010 at 5.30 PM, the accused asked his father about his coming to the terrace last night. The deceased replied arrogantly by commenting on the fidelity of the wife of the accused. Then the accused beat the deceased with a casuarina stick on the head and temporal region, causing bleeding injuries, and as a result, the deceased fell unconscious. On 30.05.2010 at 5.30 PM, the accused asked his father about his coming to the terrace last night. The deceased replied arrogantly by commenting on the fidelity of the wife of the accused. Then the accused beat the deceased with a casuarina stick on the head and temporal region, causing bleeding injuries, and as a result, the deceased fell unconscious. Immediately the injured was shifted to Government Hospital, Bobbili, and in turn to KGH Visakhapatnam; while undergoing treatment, the deceased succumbed to the injuries. On 02.06.2010 at 9.00 AM, on receipt of death intimation over the phone from an out-post police station, altered the section of law and issued altered F.I.R. 4. On the accused's appearance, copies of the document, as required under Section 207 Cr.P.C., came to be furnished. Since the case is triable by the Court of Sessions, the matter was committed to the Court of Sessions U/S 209 Cr.P.C. 5. Based on the material available on record, as referred to earlier, the charge came to be framed, read over and explained to the accused, to which he pleaded not guilty and claimed to be tried. 6. The prosecution examined P.Ws.1 to 12 to prove the case. It got marked Exs.P.1 to P.17 besides marking M.O.1. After completion of the prosecution evidence, the accused got examined under Section 313 Cr.P.C. regarding the incriminating and circumstantial material against the accused in the evidence of prosecution witnesses, to which he denied. No oral or documentary evidence was adduced on behalf of the defence. The defence was one of total denial. 7. After considering the necessary material available on record, the learned Sessions Judge found the accused guilty of the offence, convicted and sentenced as stated hereinbefore. Aggrieved by which the appellant preferred the present appeal. 8. We have heard learned counsel for parties at length and have perused the evidence on record. 9. Sri.G.Vijaya Saradhi, learned counsel appearing for the appellant/accused, has taken us to the evidence of the witnesses and tried to persuade us the evidence adduced is not worthy of belief. He further contends that the prosecution has utterly failed to prove its case; the learned Sessions Judge erred in relying upon the solitary testimony of P.W.2 and was unable to see P.Ws.3 to 5 material witnesses did not support the case of the prosecution. He further contends that the prosecution has utterly failed to prove its case; the learned Sessions Judge erred in relying upon the solitary testimony of P.W.2 and was unable to see P.Ws.3 to 5 material witnesses did not support the case of the prosecution. P.W.2 could not witness the occurrence as the scene of the offence, i.e. Indiramma colony, as it is not visible from the railway gate. The learned Sessions Judge failed to see that extrajudicial confession is a fragile type of evidence. It requires appreciation with great caution. There was no necessity for the accused to repose confidence in P.W.6, who was V.A.O. of another village, more than 12 days after the incident; police have concocted this piece of evidence and no reliance should be placed on it. 10. The learned Public Prosecutor contends that the conviction and sentence imposed upon the appellant do not call for any interference. The evidence of P.Ws.2 and 6 is creditworthy and inspires confidence. The learned Public Prosecutor opposed the arguments of the learned appellant counsel and supported the Judgment and order passed by the learned trial court. 11. Considering the material available on record, the point that arises for determination is whether the prosecution proved the guilt of the accused beyond all reasonable doubt. POINT: 12. The prosecution examined P.W.1-M.Venkata Rao, to prove the giving of Ex.P.1 statement to the police. His evidence shows that himself and P.W.2-Nageswara Rao were working as Gatemen, Bobbili Railway gate on the date of occurrence. According to them, P.W.1, on 30.05.2010 at 6.00 PM, when attended to duty, P.W.2 informed him the accused had beaten his father with a stick; the injured was taken to the hospital by 108 ambulance. The evidence of P.W.1 shows that he is not an eyewitness to the occurrence, and on being informed by P.W.2, he gave Ex.P.1-statement. 13. According to the evidence of P.W.9-S.V.Ramana, the Head constable that on 30.05.2010, he was present at the police station at about 20:00 hours; he received Ex.P.9-hospital intimation from community health centre Bobbili ; he immediately rushed there and found that the injured was being shifted to headquarters hospital, Vizianagaram, in an Ambulance. He contacted the doctor, who informed him that the patient was unconscious, he could not record his statement. PW.9 went to Gunnathotavalasa Village and did not find anybody. He contacted the doctor, who informed him that the patient was unconscious, he could not record his statement. PW.9 went to Gunnathotavalasa Village and did not find anybody. From there, he rushed to the railway level crossing gate and found PW.1 near the said gate. He recorded the statement of PW.1 near the railway level crossing gate, He went back to Bobbili Police station; registered a case in Cr. No.143 of 2010 under Section 324 IPC based on the statement of P.W.1; submitted Ex.P.11-FIR to the Court. 14. It is the evidence of P.W.8-G.Krishna Swamy, who worked as Civil Assistant Surgeon, C.H.C., on 30.05.2010 while he was present in the hospital at about 6.30 PM, a person by name Garubilli Venkataramana was brought to the hospital by 108 ambulance in an unconscious state. He observed lacerated injury on the occipital region area overhead and chin, and he had given Ex.P.9 intimation to S.H.O., Bobbili P.S. The evidence of PW.9 is corroborated by the evidence of PW.8 about the visit of the police constable to the hospital and his attempt to record the statement of the injured, but he could not record the statement. The evidence of PW.8 shows that the injured was unconscious; it was certified to that effect by Ex.P.10 endorsement. The evidence of PW.8 could not be disputed regarding admission of injured in the hospital with injuries and noticing of injuries by PW.8. According to P.W.9, on 31.05.2010, he again went to Gunnathotavala Village; he secured the presence of PW.6-Sanakarapu Krishna Murthy Naidu and Padala Bharathamma and rushed to the scene of offence situated in front of the house of the deceased. He observed the location of the offence in their presence. At the crime scene, he found three sticks marked as M.O.1, blood-stained earth and controlled earth were collected under cover of the mediator report by Ex.P.12, and he prepared Ex.P.13 rough sketch of the scene of the offence. 15. P.W.6-Sankarapu Krishna Murthy Naidu, V.R.O., also deposed that he, along with LW.10 - P.Bharati, Ex-counselor and the Police personnel, visited the scene of the offence, i.e., at Indiramma Colony. The police examined the scene in their presence; drafted the scene observation report; also, in their presence, the police seized three casuarina sticks, i.e., MO.1 (sarugudu sticks). The police collected blood-stained earth and controlled earth from the scene of offence vide Ex.P.5 scene observation report. The police examined the scene in their presence; drafted the scene observation report; also, in their presence, the police seized three casuarina sticks, i.e., MO.1 (sarugudu sticks). The police collected blood-stained earth and controlled earth from the scene of offence vide Ex.P.5 scene observation report. In which he and L.W.10-P.Bharati also subscribed her signature in Ex.P.5. Evidence of PWs.6 and 9 is not disputed seriously regarding their visit to the scene of the offence, seizure of MO.1, and collected blood-stained and controlled earth. 16. As per the evidence of P.W.11-M, Appa Rao, Inspector of Police, who worked as S.I. of Police, Bobbili P.S., on 02.06.2010 at 9.00 AM, he received death intimation over the phone from an out-post police station, based on the death intimation he altered section of law and issued Ex.P.14-altered F.I.R.; as the offence is grave in nature, L.W.21-Inspector of Police took up further investigation, and he accompanied L.W.21 while investigating throughout and L.W.21 is not alive now. 17. The evidence of P.W.11 shows that on 02.06.2010 at 9.00 AM, he accompanied the Inspector of Police and conducted an inquest over the dead body from 1.00 PM to 3.30 PM; at that time, the Inspector of Police had examined P.Ws.3 to 5, L.W.4-Garugubili Sathish Kumar and L.W.8-Sidda Krishna Rao, from there they went to the scene of offence and drafted the scene observation report The evidence of P.W.11 further shows that on 07.06.2010, the C.I. of Police had received post mortem certificate of the deceased. 18. The prosecution examined P.W.4-Puvvala Venkata Ramana and PW.5 - Kella Satyanarayana to prove the inquest. Their evidence shows that police held an inquest over the dead body of the deceased in their presence at K.G.H., Visakhapatnam, and they subscribed their signatures on the inquest report. 19. According to the evidence of P.W.7-Kuppili Chinna Rao, on 02.06.2010 at the time of inquest, on being called by police, he, along with L.W.12-Swaminaidu, P.W.5-Satyanarayana and others went to the mortuary shed where the concerned police held an inquest over the dead body of the deceased in their presence, and he drafted Ex.P.8 inquest report; he and other panchayatdars signed on Ex.P.8 and after examining the circumstances and state of a dead body and on examination of five witnesses, the panchayatdars unanimously opined that the deceased died due to beating of his son. The same is noted in column No.15 of Ex.P.8. The same is noted in column No.15 of Ex.P.8. Though the prosecution's case is that the death of the deceased occurred due to the beating of his son is disputed that the opinion of the panchayatdars deceased's death occurred due to injuries is not at all disputed. 20. According to evidence of P.W.10, who worked as a Professor in K.G.H. Hospital, Visakhapatnam, on 30.05.2010, when he was present in the hospital at 10.15 PM, one G.V.Ramana was brought to the K.G.H., Visakhapatnam with a severe head injury. The casualty Medical Officer attended and examined the duty Neuro Assistant Surgeon. He narrated the treatment provided to Venkata Ramana, and after undergoing treatment, the said Venkata Ramana died. The patient was ordered for a C.T. scan of the brain, which showed a left parietal bone fracture with frontoparietal subdural haematoma with subarachnoid haemorrhage. While getting the treatment, he died and informed the same to police, and the body was sent to the mortuary. 21. The prosecution examined P.W.12-V.Chandra Sekhar, who worked as an Assistant Professor, to identify the signature of Dr. R.Nagasankara Reddy, who worked as an Assistant Profession for some period in the department. The postmortem certificate of the deceased was confronted to P.W.12, but he could not identify the signature of Dr.R.Nagasankara Reddy. The evidence of the P.W.11-investigation officer shows that on 07.06.2010, the CI of police received Ex.P.15 postmortem report. 22. In Ex.P.15, the doctor observed the following injuries while conducting the postmortem examination on the dead body of the deceased Venkataramana: 1. A sutured wound of 5 cm, noted with three stitches on the top outer back 1/3rd ® part of the head; 2. A sutured wound of 6 cm, noted with four stitches on the top aspect mid 1/3rd of the left part of the head; 3. A sutured wound of 3 cm was noted with two stitches on the upper and outer 1/4th of the left part of the forehead; 4. Abrasion 2 x 2 cms noted on right bony cheek area of the face; 5. Contusion of 5 x 4 cms, noted on front aspect upper 2/3rd of the right ear; 6. A sutured wound of 3 cm was noted with two stitches on the upper and outer 1/4th of the left part of the forehead; 4. Abrasion 2 x 2 cms noted on right bony cheek area of the face; 5. Contusion of 5 x 4 cms, noted on front aspect upper 2/3rd of the right ear; 6. A sutured wound of 4 cm, noted with three stitches on under the surface of (L) part of the chin and adjoining lower jaw with a fracture at the front outer aspect of the left part of the Chin area of lower jaw bone noted; 7. Skin deep laceration of 2x % cms noted on the back aspect of right shoulder; 8. Grazed abrasion of 8 x 3 cms, noted on left back lower %'s inner % area chest; 9. A contusion of 3 x 3 cm was noted on the inner aspect of the right elbow; 10. A contusion of 3 x 3 cm was noted on the inner aspect of the left elbow; 11. Contusion of 10 x 6 cms, noted on front and left part of larynx area's neck underlying tissues mentioned; 12. Contusion of 28x26 cms stated all over the scalp; 13. Comminuted and depressed fracture 20 x 17 cms, noted on top of the outer aspect of the back 2/3rd of a skull, left back, and to the right lower occipital area skull; 14. Extradural haematoma of 12 x 10 x 1/2cms (60 gms) noted on top, outer aspect of (L) back 2/3rds and back aspect left part dura lower area mentioned; 15. Diffuse traumatics D.H., S.A.H. noted all over the brain, more on the right part, with bruising of the whole brain with haemorrhagic contusion of front and outer aspects of right temporal and back external aspects of left temporal lobes with haemorrhages in brain stem area noted; 16. Multiple fractures of both M.C.F.s and front parts of left A.C.F. of a base of skull noted; 23. The evidence of P.W.11 shows that on 24.06.2010, the C.I. of police had prepared a letter of advice-Ex.P.16 and sent blood-stained earth, controlled earth collected from the scene of the offence, and bloodstained cloth recovered from the dead body of the deceased at the time of post mortem by the doctor. On 21.08.2010, the CI of police received the F.S.L. report, i.e. Ex.P.17. On 21.08.2010, the CI of police received the F.S.L. report, i.e. Ex.P.17. The observations made in Ex.P.17-FSL report are as under: "Human blood is detected on items 1, 2 and 4, but their blood group could not be established. Blood is not detected on item No.3, which is received as a control for item No.2". 24. As seen from the stand of the defence, the appellant has not disputed the homicidal death of his father. The evidence of PW.7 establishes that after examining the dead body and on examination of panchanama witnesses, the panchayatdars unanimously opined that the deceased died due to the beating of his son, i.e., the accused. 25. The evidence of PW.6 establishes that the police collected bloodstained earth and controlled earth from the scene of the offence, and Ex.P.5- scene observation report is prepared, and the MO.1 is also seized at the location of the crime. 26. The inquest, postmortem, and scene observation report clearly show that the deceased sustained injuries. The nature of the injuries suffered by the deceased indicates that his death was not natural. Per the inquest report, the deceased's death occurred due to injuries sustained by him. The evidence of PW.8 shows that he observed an injury on the occipital region when he first examined the injured/deceased, and he could not record the statement of injured as he was unconscious. The evidence of PW.8 shows that the deceased sustained a parietal bone fracture with frontoparietal subdural haematoma sub-arachnoid haemorrhage. Postmortem report shows that he suffered a fracture on top of the outer aspect of the back 2/3rd of the skull, left back and right lower occipital area skull. Therefore, from the material evidence placed by the prosecution it is clear that the deceased Venkata Ramana met with a homicidal death. 27. Learned defence counsel contends that, in the cross-examination, PW.1 revealed that he had no personal acquaintance with the accused and his father. Based on the information given by the police, he stated the name of the accused in the Court, and he did not go to the spot after receiving information from PW.2-Nageswara Rao; two days after the incident, police called him and recorded his statement in the police station. 28. During the cross-examination, PW.9 stated that he proceeded to the railway level crossing gate, noticed P.W.1 near the gate and recorded his statement. 28. During the cross-examination, PW.9 stated that he proceeded to the railway level crossing gate, noticed P.W.1 near the gate and recorded his statement. As seen from Ex.P1 statement of PW.1, he referred to the accused's name. The evidence of PWs.1 and 9 is somewhat inconsistent concerning where the statement of PW.1 was recorded. The evidence of PW.9 shows that before giving of statement by PW.1, PW.9 visited the hospital, enquired about the health condition of the injured and proceeded to the scene of the offence. The learned counsel for the appellant contends that PW.9 had already got information about the offence. In the facts of the case, Ex.P1 statement cannot take as First Information Report. In the case of Nirmal Singh v. State of Bihar, 2005(9) SCC 725 and Sanganagouda A. Veeragounda v. State of Karnataka 2005 (12) SCC 468, the Apex Court held that, '...it gives out the position that merely because doubts are raised about the F.I.R. and the nature of prosecution case that by itself, would not be fatal to the prosecution case.' 29. Based on the evidence led before the Court, the Court can weigh the inconsistencies in the F.I.R. and the direct evidence led by the prosecution. It is not a universal rule that once F.I.R. is found with discrepancies, the whole prosecution case, as a rule, has to be thrown out. Such can never be the law. 30. It is the case of the prosecution that the accused intended to kill his father as he misbehaved with his wife. The prosecution examined PWs.3 to 5 to establish the misbehaviour of the deceased towards his daughter-in-law. PWs.4 and 5 have supported the case of prosecution regarding holding an inquest over the deceased's dead body. But they did not support the prosecution's case regarding the alleged misbehaviour of the deceased. In cross-examination of P.Ws.4 and 5, they denied the suggestions that they stated before the police to the effect that the deceased outraged the modesty of the wife of the accused; on that accused beat the deceased with a stick. 31 .The evidence of PW.3-G.Lakshmi, the wife of the deceased shows that the accused's marriage was performed one year before the death of her husband; after his marriage, herself, the deceased and the accused, and his wife used to reside in the same house. 31 .The evidence of PW.3-G.Lakshmi, the wife of the deceased shows that the accused's marriage was performed one year before the death of her husband; after his marriage, herself, the deceased and the accused, and his wife used to reside in the same house. She knows that the deceased and accused used to quarrel with each other. We are of the view that, when they were residing together, PW.3 is supposed to know about the dispute between her husband and son and the happenings in her house. PW.1 further deposed that she could not say why the accused and deceased quarreled with each other and she could not say why they quarreled with each other as she was not present. Admittedly the deceased sustained injuries. He was referred to Government Hospitals accompanied by PW.3. As such, it is somewhat difficult to accept the evidence of PW.3 that she did not find any injuries on the person of her husband. The trial court also observed witness is reluctant to answer the questions put forth by it. She also deposed that she doesn't know the subsequent events. In the cross-examination held by Public Prosecutor, she denied the suggestion that she stated before the police as in Ex.P3, to that effect, her husband outraged the modesty of her daughter-in-law, the deceased going to the terrace to observe his daughter-in-law thrice on 29.05.2010. Thus it is clear that she is unwilling to speak the established facts as the accused is none other than her son. 32 .From the tenor of her testimony, it appears that she had healed wounds due to passage of time. It has become the order of the day that lost lives are least bothered or valued. With time, grief goes into the air and is replaced by material consideration. No doubt, the fate of the criminal case is based on the witnesses, but the character of the witnesses, these days, is withering away. 33 .Though the deceased's wife is not coming forward to reveal the facts established from the record, however, PW.2, said to have witnessed the incident, supported the prosecution's case. The prosecution case centers around the sole testimony of PW.2 ; and also the confessional statement said to be given by the accused to PW.6. 33 .Though the deceased's wife is not coming forward to reveal the facts established from the record, however, PW.2, said to have witnessed the incident, supported the prosecution's case. The prosecution case centers around the sole testimony of PW.2 ; and also the confessional statement said to be given by the accused to PW.6. 34 .It is settled law that when a case rests upon the evidence of a solitary witness, it must be unimpeachable, genuine, trustworthy, free from doubt and be put in the category of wholly reliable. When the evidence of a witness is placed in the category of fully reliable, then only there is no legal bar to base conviction on the solitary testimony of the witness. Then only such evidence needs no corroboration. 35.The learned Public Prosecutor relied on a case between Edward v. Inspector of Police, Aandimadam Police Station, (2015) 11 Supreme Court Cases 222 wherein the Apex Court referred the decision reported in Bipin Kumar Mondal v. State of W.B. (2010) 12 SCC91, wherein it has been held that there is no legal impediment in convicting a person on the sole testimony of a single witness provided he is wholly reliable. 36.In a case of Masalti v. State of A.P. A.I.R. 1965 SC 202, the Constitution Bench of Apex Court held that under the Evidence Act, trustworthy evidence given by a single witness would be enough to convict the accused persons. In a case of State of Punjab v. Harder Singh (2003) 12 SCC 679 , the Apex Court indicated that conviction on the testimony of a single witness was permissible where his testimony was creditworthy and convincing. The golden rule of asserting evidence of any witness is to see whether, on the natural sequence of events, the person deposing in one who is naturally familiar with the facts settled under oath, his testimony stands the test of cross-examination and he has no motive to implicate for the accused. It is well settled that when ocular evidence is cogent, credible and trustworthy, minor variance if any, is not of any consequence. 37.The Apex Court in a case of Krishnan v. State, (2003) 7 SCC 56 indicted that witnesses are the eye and ears of justice. Eyewitnesses' accounts would require a careful, independent assessment and evaluation of their credibility. It is well settled that when ocular evidence is cogent, credible and trustworthy, minor variance if any, is not of any consequence. 37.The Apex Court in a case of Krishnan v. State, (2003) 7 SCC 56 indicted that witnesses are the eye and ears of justice. Eyewitnesses' accounts would require a careful, independent assessment and evaluation of their credibility. The evidence must be tested for its inherent constituency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the credit of the witnesses, their performance in the witness box; their power of observation etc. It is the evidence of PW.2 that he worked as a gateman in Bobbili from 2004 to 2011. The house of the accused and deceased is situated 35 or 36 meters away from the railway gate. The house of the accused is visible from the railway gate'. The evidence of PW.2 is also supported by evidence from PW.3, who stated that the distance between her house railway gate is nearly 50 feet. In the cross-examination, PW.9 also stated that the scene of offence is 25 feet from the railway cabin. The evidence of PWs.2 and 9 is not seriously disputed in crossexamination. Thus this Court views that the railway gate is 25 feet to 50 feet from the accused's house. In the cross-examination, he stated that the accused's house is situated in the colony's first line. By that time, no houses existed in or around the house of the accused and deceased. But some houses are newly constructed. The evidence of PW.2 also finds support from the evidence of PW.3. According to her, at the time of the incident, her house was in existence; she adds that some houses were also in existence, but none were residing. It is the case of the prosecution also that the incident was witnessed by PW.2 only. In the facts of the case, the non-examination of the witnesses from the locality of the scene of the offence doesn't affect the prosecution's case in any way. 38.It is the evidence of PW.2 that the incident occurred on 30.05.2010 after 04.00 PM. When the deceased Venkata Ramana was sitting on the gate wall, the accused came and called him, but the deceased did not go. 38.It is the evidence of PW.2 that the incident occurred on 30.05.2010 after 04.00 PM. When the deceased Venkata Ramana was sitting on the gate wall, the accused came and called him, but the deceased did not go. Then he advised the deceased to go, and accordingly, the deceased went towards his house by running. The accused also chased the deceased by running and beating the deceased with a stick outside the bathroom. He informed the same to PW.1. 39.It is evidence of PW.2 that he was examined by the police two days after the incident and subscribed his signature on the statement recorded by the Magistrate. He denied the suggestion in the crossexamination that he did not state before the police about the sitting of deceased on the gate wall and also running of the deceased and chasing of the accused. The statement recorded by the Magistrate under Section 164 of Cr.P.C. is marked as Ex.P2. The evidence of PW.2 is consistent regarding that he witnessed that accused hitting Venkata Ramana with a stick. PW.1 also did not state in his evidence that PW.2 informed him about the running of deceased and chasing of the accused. There is no such reference in Ex.P2 also. It is not the defence that there is no possibility to witness the incident from the railway gate by PW.2. 40.It is not the case of defence that by the date of occurrence, PW.2 was not working at the railway gate. The evidence of PW.1 also supports the prosecution's case that on 30.05.2010 at 06.00 PM, when he attended to his duty, PW.2-Nageswara Rao informed him that the accused beat his father with a stick and the injured was shifted to Government Hospital in 108 Ambulance. 41.Except for suggesting that PW.2 had not witnessed the incident, nothing is elicited in his cross-examination to discredit his evidence. The evidence of PW.2 shows that he witnessed the accused beating the deceased from a distance of 35 to 36 feet. No motive was attributed to him to speak falsely against the accused. To raise a doubt significant enough to discard the statement of an eye witness, it was incumbent upon the appellant to elicit during cross-examination. The material would enable the Court to hold that the eyewitness deposed falsely. In the present case, no such evidence was elicited from PW.2. No motive was attributed to him to speak falsely against the accused. To raise a doubt significant enough to discard the statement of an eye witness, it was incumbent upon the appellant to elicit during cross-examination. The material would enable the Court to hold that the eyewitness deposed falsely. In the present case, no such evidence was elicited from PW.2. The counsel for the appellant was unable to bring notice of any circumstance that would compel us to hold otherwise. 42.It is the case of the prosecution that on 12.06.2010, the accused approached V.R.O. of Mettavalasa, who is examined as PW.6 and gave an extrajudicial confession. Before we discuss the evidence of PW.6 we feel it is necessary to refer the following decisions of the Hon'ble Apex Court with regard to evidentiary value of extra judicial confession. 43.In a case of Narayan Singh V. State of M.P., (1985) 4 S.C.C. 26 the Apex Court held that it is not open to any Court to start with a presumption that an extrajudicial confession is a week type of evidence. It depends upon the veracity of the witnesses to whom it is made. It is for the Court to decide on the acceptability of the evidence regarding the credibility of the witnesses. 44.In a case of Baldev Raj v. State of Haryana 1991 Supp (1) SCC 1, the Apex Court held that an extrajudicial confession, if voluntary, can be relied upon by the Court along with other evidence in convicting the accused. The value of the evidence as to the confession depends upon the veracity of the witnesses to whom it is made. The Court indeed requires the witness to give the actual words used by the accused as nearly as possible, but it is not an invariable rule that the Court should not accept the evidence, if not the actual words but the substance given. The Court must regard the witness's credibility to accept the evidence. When the Court believes the witness before whom the confession is made and is satisfied that the confession was voluntary, a conviction can be founded on such evidence. 45.In a case of Gagan Kanojia v. State of Punjab 2007 (2) Crimes 81 (SC), the Apex Court held that the extra judicial confession can form the basis of a conviction and by way of abundant caution, Court may look for some corroboration. 45.In a case of Gagan Kanojia v. State of Punjab 2007 (2) Crimes 81 (SC), the Apex Court held that the extra judicial confession can form the basis of a conviction and by way of abundant caution, Court may look for some corroboration. 46.Therefore, on the above principles, it is clear that there is no rule of law that the evidence of extra judicial confession cannot be relied on alone, and for recording a conviction on such confession, there should be corroboration by some other evidence. On the contrary, if the evidence of extrajudicial confession is reliable, trustworthy and beyond the shadow of a doubt, the same can be made the sole foundation for recording the conviction of the accused and the Court, by abundant caution, may look for some corroboration. 47.In light of the above settled legal position, now we shall examine the extrajudicial confession said to be made by the appellant before PW.6.The evidence of PW.6 shows that on 12.06.2010, he was present at Mettavalasa in his office, and the accused came to him and confessed that a Galata had taken place between him and his father. He enquired the accused as to why the Galata took place; he stated that the behaviour of his father against his wife was not appeared to be good, and he admonished his father one or two times, but there was no change in the attitude of the deceased and beat the deceased with MO.1 stick, and after the incident, ran away with fear. His father died on 01.06.2010 due to injuries, and till the date of his surrender, he was travelling to Rayagada and Bobbili out of confidence; he came and surrendered before him, and on that, he recorded Ex.P6 extrajudicial confession, in which he obtained the signature of accused, and also he subscribed his signature and handed over Ex.P6 to the police along with Ex.P7 report to the police. 48.In the cross-examination, it is elicited that the accused came to him at about 09.00 AM, and it took one hour to conclude Ex.P6. Except for eliciting the said fact regarding the extrajudicial confession and suggesting that the accused never confessed, made no crossexamination to discredit the evidence of PW.6. 49.As recorded, the appellant's words are unambiguous and unmistakably conveyed that the appellant is the perpetrator of the crime. Except for eliciting the said fact regarding the extrajudicial confession and suggesting that the accused never confessed, made no crossexamination to discredit the evidence of PW.6. 49.As recorded, the appellant's words are unambiguous and unmistakably conveyed that the appellant is the perpetrator of the crime. Thus the testimony of a witness regarding the accused making an extrajudicial confession reduced in writing which was marked as an exhibit, is quite trustworthy. 50.It is contended on behalf of the defence that there is no reason for approaching PW.6, V.R.O. of Mettavalasa, by leaving V.R.O. of his village. The said contention is raised before the trial court also. The trial court observed that the object behind approaching PW.6 is due to fear of the police; he was wondering outside the village; as such, the conduct of the accused in approaching PW.6, who is V.R.O. of a different village, appears to be natural as there would be a vigil in a village about his movements. The said finding given by the trial court is quite reasonable in the facts of the case. As rightly observed by the trial court, it did not elicit in the cross-examination of PW.6 whether the accused had prior acquaintance with PW.6 to repose confidence on him to give an extrajudicial confessional statement. The crossexamination of this important witness (PW.6) by defence is absolutely short and cryptic. No attempt was made to falsify his version regarding extra judicial confession and no motives attributed to him. In the absence of such cross-examination, it cannot be held that there was no possibility of reposing confidence in PW.6 by the accused. 51.The learned defence counsel contended that the non-examination of Investigating Officer was fatal to the prosecution's case as the statements of witnesses were recorded by the Investigating Officer himself. Furthermore, the non-examination of Investigating Officer has seriously affected the prosecution case because the appellants could not take contradictions in respect of statements of witnesses recorded by the Investigating Officer earlier during the investigation. Furthermore, the non-examination of Investigating Officer has seriously affected the prosecution case because the appellants could not take contradictions in respect of statements of witnesses recorded by the Investigating Officer earlier during the investigation. 52 .In a case of Kota Peda Nagesh vs State of Andhra Pradesh 1999 Law Suit (A.P.) 55, the Apex Court observed that in this background, it becomes necessary for us to examine the repercussions and importance of the statements recorded under Section 161 Cr.P.C. we must necessarily mention that the statements recorded under Section 161 Cr.P.C. could be used by the prosecution as well as the accused if a witness deposes in the Court contrary to his statement made under Section 161 Cr.P.C., before the police, the prosecution could then seek the permission of the Court to declare such witnesses as hostile to the prosecution and cross-examine them. If some new facts are brought on record in the evidence of a witness in the Court which is also contrary to their statement made under Section 161 Cr.P.C. before the police, the defence is entitled to mark those contradictions and improvements and can use those contradictions or enhancements in favour of the accused. Thus, the statements under Section 161 Cr.P.C. made by the witnesses before the police assume much significance. 53. There is no doubt that as a part of a fair trial, the investigation officer should be examined during the trial, especially in a Sessions trial, if any of the prosecution witnesses give evidence contrary to their previous statement recorded under Section 161, Cr.P.C. or if there is an omission of certain material particulars, the earlier statements of these witnesses can be proved only by examining the investigation officer who must have recorded the statements of these witnesses under Section 161 Cr.P.C. 54. The non-examination of the Investigation Officer has not prejudiced the accused as no material contradictions were elicited in the evidence of PW.2, who is a solitary eye witness to the prosecution case. Furthermore, the prosecution examined PW.9-Head constable and PW.11-Sub Inspector of Police, Bobbili, who assisted the C.I. of police in conducting the investigation and the scene of observation report, a rough sketch are marked through PW.9 and also through PW.6-V.R.O., who was present along with the police at the time of the visit of the scene and recovery of the material objects. 55. 55. In a case of Behari Prasad v. State of Bihar, (1996)2 SCC 317 the Apex Court observed that the non-examination of the Investigating Officer is not fatal to the prosecution case, especially when no prejudice is likely to be suffered by the accused. 56. In a case of Bahadur Naik v. State of Bihar, (2000) 9 SCC 153 the Apex Court opined that when no material contradictions have been brought out, then non-examination of the Investigating Officer as a witness for the prosecution is of no consequence and under such circumstances, no prejudice is caused to the accused. 57. The non-examination of the Investigating Officer in all cases does not render the prosecution case vulnerable. In the present case, the defence was afforded a reasonable opportunity to obtain contradictions, if any, in respect of earlier statements of witnesses from the P.W. 10 who, being equipped with the relevant CD, faced the cross-examination in place of the Investigating Officer due to death of CI of police, who investigated the case. It is not the case that the prosecution deliberately withheld the examination of the Investigating Officer; rather, the Investigating Officer could not be examined since he left the world of living. It is a settled position of law that it is only when prejudice is shown, the non-examination of I.O. assumes importance. A criminal trial would not fail merely because the Investigating Officer could not be examined. A case of prejudice is to be established by the accused. If no contradiction is pointed out in the statement of witnesses in the light of the statement given to the I.O., Then non-examination of I.O. is of no consequence as no contradictions are elicited in the cross- examination of material witnesses PWs.2 and 6. 58. The learned defence counsel contends that the non-examination of the doctor who conducted the postmortem examination is fatal to the case of the prosecution, and the defence has no opportunity to crossexamine the witness. Due to the doctor's death, who conducted a postmortem examination, the prosecution could not examine him. 59. As already observed, the prosecution examined PW.12-V.Chandra Sekhar, but he could not identify the signature of Dr.R.Nagasankara Reddy. 60. The learned Public Prosecutor relied on a case between Akhtar and Others V. the State of Uttaranchal, (2009) 13 Supreme Court Cases 722 in which Apex Court held, at paragraph 21, that: '21. 59. As already observed, the prosecution examined PW.12-V.Chandra Sekhar, but he could not identify the signature of Dr.R.Nagasankara Reddy. 60. The learned Public Prosecutor relied on a case between Akhtar and Others V. the State of Uttaranchal, (2009) 13 Supreme Court Cases 722 in which Apex Court held, at paragraph 21, that: '21. It has been argued that non-examination of the concerned medical officers is fatal for the prosecution. However, there is no denial of the fact that the defence admitted the genuineness of the injury reports and the postmortem examination reports before the trial court. So the genuineness and authenticity of the documents stand proven and shall be treated as valid evidence under Section 294 of the CrPC. It is a settled position of law that if the genuineness of any document filed by a party is not disputed by the opposite party, it can be read as substantive evidence under sub-Section (3) of Section 294 CrPC. Accordingly, the postmortem report, if its genuineness is not disputed by the opposite party, the said postmortem report can be read as substantive evidence to prove the correctness of its contents without the doctor concerned being examined'. 61. As seen from the record, the case of the prosecution that the deceased died due to injuries sustained in the occurrence is not disputed. The prosecution has explained the reason for the nonexamination of the doctor. The said reason is not disputed. The prosecution examined PW.8 to prove that on 30.05.2010, while he was in the hospital, the injured Venkataramana was brought to the hospital in an unconscious state, and he observed a lacerated injury on the occipital area and chin. The said evidence of PW.8 is not disputed. The prosecution also examined PW.10, Dr K.Vishnu Prasad. He also deposed that the injured sustained a left parietal bone fracture, and despite the treatment given to him due to his severe head injury, he expired at 07.00 PM on 01.06.2010. The said evidence of PW.10 is also not disputed. It is also not the defence case that the nature of injury was not such which could have caused the death of the deceased. The said evidence of PW.10 is also not disputed. It is also not the defence case that the nature of injury was not such which could have caused the death of the deceased. We think that injury caused to the deceased was sufficient in the ordinary course of nature to cause death because the medical record shows that the deceased sustained a left parietal bone fracture and also in view of the evidence of PW.10 referred to above. In the stated facts of the case and following the observations in the decisions cited above, this Court views that the non-examination of the doctor who conducted the postmortem examination does not affect the prosecution's case. 62. It is well-established law that the quality and not the quantity determines the evidence's adequacy. Evidence has to be weighed, not counted, as is held by the Apex Court in a case between R.Shaji v. State of Kerala, 2013 (2) ALD (Crl.) 153 SC that, "22.... In the matter of appreciation of evidence of witnesses, it is not the number of witnesses but the quality of their evidence which is important, as there is no requirement in the law of evidence stating that a particular number of witnesses must be examined to prove/disprove a fact. It is a time-honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible, trustworthy, or otherwise. The legal system has emphasized the value provided by each witness, as opposed to the multiplicity or plurality of witnesses. It is, thus, the quality and not quantity, which determines the adequacy of evidence, as has been provided by Section 134 of the Evidence Act.' 63. Nothing is elicited in the cross-examination of PWs.2 and 6 which may suggest that these witnesses are telling a lie. Moreover, the defence could not point out anything in the cross-examination of this witness that they are deposing against the appellants on account of enmity. 64. Keeping the principles in mind as already referred to, the trial court has appropriately accepted the confession made by the accused before PW.6, and there was no scope for any doubt regarding the complicity of the appellant in the crime. The confession of the appellant was voluntary. 64. Keeping the principles in mind as already referred to, the trial court has appropriately accepted the confession made by the accused before PW.6, and there was no scope for any doubt regarding the complicity of the appellant in the crime. The confession of the appellant was voluntary. The testimony of PW.6 being a responsible person could not be doubted without any material to show that he had been motivated to implicate the appellant falsely. Therefore, we could not find any infirmity in the confession which has been accepted and relied upon by the trial Court. 65. The testimony of PWs.2 and 6 inspire confidence. There was no motive for the witnesses to falsely implicate the appellant. The presence of PW.2 at the railway gate at the time of the incident cannot be doubted as the employee of the railway. PW.1 also spoke about the presence of PW.2 at the railway gate at the time of the incident to attend to his duties. The evidence of PW.1 also establishes that when he attended duty at 06.00 PM, PW.2 informed him about the incident in question. PWs.1 and 2, who were working as a gateman at Bobbili Railway gate, have no reason to give evidence against the interest of the accused. PW.2 truthfully described the occurrence. 66. Nothing is brought in the cross-examination of PW.2 to show that he has deposed falsely against the accused with any definite motive. On the other hand, this witness was an independent witness having no ill-will or enmity against the accused, nor did he has any special interest in the case of the prosecution. Therefore, we are of the opinion that the trial court did not commit any illegality or irregularity, nor has it shown any arbitrariness in accepting his evidence. 67. In so far as the commission of the offence by the accused is concerned, the evidence of PW.2 is fully corroborated with the evidence of PW.6, and this evidence stood fully corroborated by medical evidence. In the absence of any material in record to indicate that PWs.2 and 6 were biased against the accused and they were inimical towards him or that they were set up by the police or any other person to act against the interest of the accused it would be unfair to brand them as planted witnesses. In the absence of any material in record to indicate that PWs.2 and 6 were biased against the accused and they were inimical towards him or that they were set up by the police or any other person to act against the interest of the accused it would be unfair to brand them as planted witnesses. In this case there is nothing to indicate that PW.6 falsely implicated the accused or he coerced the accused by misusing his position. All would go to show that it was the accused who had actually attacked the deceased and caused his death. The appellant has been found guilty of causing the death of the deceased. The next question comes for consideration as to whether the act of the accused proves culpable homicide amounts to murder or not. 68. In order to find out whether the appellant had the intention to cause the death of the deceased or beat the deceased due to grave and sudden provocation. We have to consider several circumstances available on record. In the light of material available on record through the evidence of PW.6 and the alleged extrajudicial confession Ex.P6 said to have been given by the accused to PW.6, it is crystal clear that a wordy quarrel preceded the occurrence. We are of the opinion that while appreciating the evidence brought on record by the prosecution, that has to be appreciated in its entirety. 69. It is the settled position that the confessional statement given by the accused need not be detailed before the Court verbatim. Further, in this case, it is found that the Village Administrative Officer had reduced the confessional statement of the accused in writing. He, having referred to the confessional statement reduced in writing, would state that the statement recorded by him was the confession given by the accused. When a confessional statement is reduced into writing, and the same is marked before the Court, there is no necessity for such a witness to speak word by word the confession given to him. After all, an opportunity is unfolded for the defence to subject the confessional statement, which has been reduced in writing for cross-examination. 70. Ex.P6 is a lengthy statement, but to appreciate the contention, it is enough to give a brief summary as there is no bar using the statement. After all, an opportunity is unfolded for the defence to subject the confessional statement, which has been reduced in writing for cross-examination. 70. Ex.P6 is a lengthy statement, but to appreciate the contention, it is enough to give a brief summary as there is no bar using the statement. The reading of the evidence of PW.6 coupled with Ex.P6 shows that after the marriage accused was residing in a rented house at Gouduveedhi along with his parents and wife. When he attended night duty one night, his father Venkataramana entered a room, he made an attempt to rape her. She objected and pushed him out. Again after two days also, he made a similar attempt when the accused was not present in the house; by pressing her mouth to prevent her from shouting. After four months in his absence his father/deceased intruded into his wife room and put hands on her chest in order to rape her unable to bear the same, on the next day, his wife went to her parent's house, and then he went to his in-law's house and brought her to his house at Gouduveedhi. On 29.05.2010 at about 09.30 PM, he and his wife were sleeping together on the top of their slabbed house; his father came there two times and observed their private life. Then he and his wife reported to PW.3, who was sleeping downstairs. After that, once again, when they were sleeping at night between midnight and 01.00 AM, his father came up to slabbed house standing very nearer to them. On the day of the incident, the accused went to the railway cabin and asked his father came to the house and questioned him from coming terrace of the house three times on the previous night; thereto his father replied that his wife was not a virtuous woman and she had illegal intimacy with many, her pregnancy was due to someone, and he insulted his wife. 71. In a case of Pulicherla Nagaraju vs State of A.P., 2006 (11) SCC 444 the Apex Court held that, 'It has been mentioned in paragraph 29 that whether there was an intention to cause death is to be gathered from several circumstances, and one of the circumstances mentioned in the said paragraph is whether the weapon was carried by the accused or was picked up from the spot. If it was carried by the accused right from the beginning, that might be a circumstance to indicate that there was an intention to cause death if it was used for attacking the deceased on a vital part of the body. However, when the weapon was not initially in the hand of the accused but was picked up from the spot during the altercation, then it cannot be said that it is a case under Section 302 IPC, rather it is only a case of culpable homicide not amounting to murder which comes under Section 304 IPC and not under Section 302 IPC'. 72.I n a case of K.M.Nanavati v. State of Maharashtra, A.I.R. 1962 SC 605 the Apex Court laid down the following principles regarding Exception 1 to Section 300 IPC. 1. The test of sudden grave provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in a situation in which the accused was placed, would be provoked as to lose his self-control. 2. In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act with the first Exception of Section 300 IPC. 3. The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. 4. The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion has cooled down by lapse of time or otherwise giving room and scope for premeditation and calculation". 73.No doubt, even in the heat of the moment or fit of anger, one should not attack somebody since human beings are expected to have the power of self-control. Nevertheless, the fact remains that in the heat of the moment and in a fit of anger, people sometimes do acts which may not have been done after premeditation. Hence the law provides that while those who commit acts in the heat of the moment or fit of anger should also be punished, their punishment should be lesser than that of premeditated offences. It is for this reason that Exceptions I and 4 have been inserted in Section 300 IPC. Hence the law provides that while those who commit acts in the heat of the moment or fit of anger should also be punished, their punishment should be lesser than that of premeditated offences. It is for this reason that Exceptions I and 4 have been inserted in Section 300 IPC. We may also refer to Exception 4 to Section 300 IPC, which reads as under: "Exception 4.-- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner". 74. Coming back to the facts of the case, the evidence of PW.8, who worked as a Civil Assistant Surgeon, shows that on 30.05.2010, when the injured was produced before him at 06.30 PM CHC, Bobbili, he observed a lacerated injury on occipital area overhead and chin. The evidence of PW.10 Professor in K.G.H. Hospital shows that on 31.05.2010 at about 10.15 PM, when the injured Venkata Ramana was produced before him, he noticed a severe head injury. It is not their evidence that they have noticed several injuries, as shown in the postmortem report. The material evidence available on record shows that the accused pushed the deceased onto the foundation and hit him with a casuarina stick, and due to the injuries caused on his head and left cheek, the injured fell down. Apart from the injuries observed by PW.8 and PW.10, the postmortem report shows that some other injuries like abrasion, contusion and sutured wounds. The possibility of sustaining those injuries referred in the postmortem report could not be ruled out while causing injury by the accused to the deceased with a casuarina stick on the head and chin. 75. We are view that the intention of a person has to be gathered from his acts as, indeed, there is no other measure of ascertaining the same. After careful reading of the material on record, it can see that had the accused intended to kill his father immediately after noticing his presence three times on the previous night; the accused would have killed him. The confessional statement shows that he reported the same to his mother, i.e., PW.3. After careful reading of the material on record, it can see that had the accused intended to kill his father immediately after noticing his presence three times on the previous night; the accused would have killed him. The confessional statement shows that he reported the same to his mother, i.e., PW.3. The evidence on record shows that the accused, on the date of the incident, attended to his regular duties, and he intended to question his father on the evening hours about his behaviour on the previous night. At that time, also he did not wield a stick. 76. Though the accused intended to question the deceased about his behaviour on the previous night, at that time also, the accused did not carry the stick along with him. As the deceased used abusive and filthy language against the wife of the accused, as indicated above, the accused lost his control in a fit of anger and pushed his father and picked up a stick from the scene of offence and hit him with a stick. It seems that provocation of the deceased deprived the power of self control of accused. The occurrence took place on the spur of the movement due to altercation between them. It is prosecution's case that the accused caused the said act with an intention to do away with the life of the deceased, we have no hesitation in holding that there is absolutely no premeditation or preplan on the part of the accused to cause the death of the deceased. 77. In view of the facts and circumstances mentioned above emerging from the evidence on record, we are of the considered opinion that the accused could not be imputed with the intention of causing the death of the deceased. The appellant cannot be found guilty under Section 302 IPC., and he could have had the knowledge that the injury would likely cause the death. Considering the factual background, the inevitable conclusion is that the appropriate conviction would be under Section 304 Part-II IPC and not under Section 302 IPC. The prosecution is able to establish the guilt of the accused beyond reasonable doubt for the offence under Section 304 Part II IPC but not under Section 302 IPC. 78. Considering the factual background, the inevitable conclusion is that the appropriate conviction would be under Section 304 Part-II IPC and not under Section 302 IPC. The prosecution is able to establish the guilt of the accused beyond reasonable doubt for the offence under Section 304 Part II IPC but not under Section 302 IPC. 78. In the result, the conviction and sentence imposed on the appellant by the II Additional Sessions Judge, Parvathipuram in SC.No.162 of 2012, dated 07.08.2015, for the offence under Section 302 IPC are hereby set aside and instead, the appellant is convicted Section 304 Part II IPC and sentenced to undergo eight (08) years rigorous imprisonment. With this modification in conviction and sentence, the appeal is partly allowed. 79. The appellant shall get the benefit of set-off in terms of Section 428 Cr.P.C., out of a period of imprisonment already undergone. 80. As the appellant is in jail, we hereby direct to intimate the convict about the result of the appeal and send a copy of the Judgment to him through the concerned.