JUDGMENT : C. Praveen Kumar, J. The present Criminal Appeal came to be filed challenging the conviction and sentence imposed in Sessions Case No.277 of 2014 on the file of the learned XII Additional Sessions Judge, Krishna at Vijayawada. 2. The sole accused herein was tried for the offence punishable under Section 302 I.P.C. Vide judgment, dated 16.02.2015, the accused was convicted and sentenced to undergo imprisonment for life and to pay fine of Rs.1,000/-, in default of payment of fine, to undergo rigorous imprisonment for a period of six months. 3. The graveman of the charge against the accused is that on 08.01.2014, in between 8.00 and 8.30 p.m., there was a quarrel between the accused and one Kolli Raju (hereinafter, referred to as “the deceased”) pursuant to which, he beat the deceased with kurupi (big size garite) on the head and forehead of the deceased leading to his death. 4. The case of the prosecution, in brief, is as under:- The deceased used to work in a mess in Sri Chaitanya College, Nidamanuru campus. He along with the accused used to cut vegetables for preparation of food material. The record shows that on 08.01.2014, at about 12 noon, there was a quarrel between the accused and the deceased, as the accused was not attending the work properly. The deceased is said to have scolded the accused for coming late to work everyday thereby, the burden of doing the work is increased on the deceased. The accused seems to have replied that when the persons, who are paying him salary, are not questioning about the same, who is he to ask him? Both of them were separated by the persons present there. In the evening at 8.00 p.m., after completion of dinner by the last batch of students, there was again a quarrel between the accused and the deceased. While both of them along with others were taking dinner after completion of work, the deceased again commented stating that the accused is not doing the work well. On that, the accused grew wild, brought one iron rod from the kitchen. At that point of time, P.W.4 intervened and snatched the rod from the hands of the accused. Thereafter, the accused went inside the mess and brought a knife. The evidence of P.W.1 shows that P.W.4 also took the knife from the hands of the accused. On that, the accused grew wild, brought one iron rod from the kitchen. At that point of time, P.W.4 intervened and snatched the rod from the hands of the accused. Thereafter, the accused went inside the mess and brought a knife. The evidence of P.W.1 shows that P.W.4 also took the knife from the hands of the accused. While both the accused and the deceased were taking dinner, again, there was a quarrel between them and on that, the accused is said to have beat the deceased with a rod on his head, face and nose repeatedly. Immediately, he was taken to hospital by P.W.3 and one Veera Babu, where the Doctors declared him brought dead. At about 10.45 p.m., P.W.9 – Head Constable received the death intimation of the deceased from Government General Hospital, Vijayawada. Ex.P-7 is the Death Intimation. Immediately, he rushed to the hospital where he noticed the nephew of the deceased (P.W.1) present. He enquired P.W.1 and recorded his statement in the hospital. Basing on the statement of P.W.1, he registered a case in Crime No.29 of 2014 for the offence punishable under Section 302 I.P.C. Ex.P-8 is the statement of P.W.1. On receipt of a copy of the F.I.R. under Ex.P-10, P.W.12 rushed to the Government General Hospital, Vijayawada and found the dead body kept in mortuary. He posted a Constable to guard the dead body. He then visited the scene of offence situated at Sri Chaitanya College Campus, Nidamanuru and posted a Guard to guard the scene of offence. He prepared a rough sketch of the scene, which is marked as Ex.P-11. He noticed the staff of the mess detained the accused and kept him in their premises. It is said that the accused complained of pain in his right hand shoulder (invisible pain) and as such, he took him into his custody and brought him to police station and later, sent him to Government General Hospital with a memo for examination. On the next day morning, at 6.00 a.m., he along with mediators proceeded to the scene of offence in a jeep and prepared a Scene Observation Report under Ex.P-2. He also got photographed the scene under Ex.P-6. Thereafter, he proceeded to the hospital and in the presence of independent witnesses, conducted inquest over the dead body under Ex.P-3. During inquest, he examined P.Ws.1 to 3 and others and recorded their statements. He also got photographed the scene under Ex.P-6. Thereafter, he proceeded to the hospital and in the presence of independent witnesses, conducted inquest over the dead body under Ex.P-3. During inquest, he examined P.Ws.1 to 3 and others and recorded their statements. After completing the inquest, he sent the body for post mortem examination. P.W.6 – Assistant Professor, Forensic Science Laboratory, Government General Hospital, Vijayawada conducted autopsy over the dead body of the deceased on 09.01.2014. He noticed three lacerations, one contusion and fracture of maxilla on the right side of the body of the deceased. According to him, the cause of death was due to head injury. The accused was arrested on 11.01.2014 by P.W.12 when the accused was discharged from the hospital. After collecting all the necessary documents and the opinion of the R.F.S.L. under Ex.P-12, a charge sheet came to filed, which was taken on file as P.R.C.No.9 of 2014 on the file of the learned IV Additional Chief Metropolitan Magistrate, Vijayawada City. 5. On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C., were supplied to him. As the offence is triable by a Court of Sessions, the case was committed to the Court of Sessions under Section 209 Cr.P.C. Accordingly, the same was made over to the Court of the learned XII Additional Sessions Judge, Krishna at Vijayawada for trial and disposal in accordance with law. 6. Basing on the material available on record, charge, as referred to earlier, came to be framed, read over and explained to the accused in Telugu to which, he pleaded not guilty and claimed to be tried. 7. To substantiate its case, the prosecution examined P.Ws.1 to 12 and got marked Exs.P-1 to P-13 and M.Os.1 to 3. After the closure 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 the prosecution witnesses to which he denied. No oral or documentary evidence was adduced on behalf of the accused. 8. Believing the evidence of P.Ws.1 to 4, which gets corroboration from the medical evidence, the learned Sessions Judge convicted the accused, as stated supra. Challenging the same, the present appeal came to be filed by the accused. 9. No oral or documentary evidence was adduced on behalf of the accused. 8. Believing the evidence of P.Ws.1 to 4, which gets corroboration from the medical evidence, the learned Sessions Judge convicted the accused, as stated supra. Challenging the same, the present appeal came to be filed by the accused. 9. Sri Chandra Reddy, learned counsel representing Sri N. Siva Reddy, learned counsel for the appellant/accused, mainly submits that the prosecution is not coming forward with true version of the case. Having regard to the injury on the accused, though invisible, the prosecution has suppressed the genesis of the incident. In view of the above, he would contend that the case has to be thrown out and hence, prays to set aside the impugned judgment. 10. On the other hand, Sri Soora Venkata Sainath, learned Special Assistant Public Prosecutor, opposed the same contending that the question of suppressing the genesis would not arise. The prosecution placed on record material showing that the accused complained of pain when police visited the scene pursuant to which, he was immediately shifted to the hospital. Further, since the injury complained of was invisible, one cannot expect the witness to speak about the attack on the deceased, if any. In fact, there is no evidence on record that such an injury is possible if there was an attack on the accused by the deceased. Apart from that, learned Public Prosecutor would contend that the evidence of eye witnesses amply establishes the case of the prosecution beyond reasonable doubt and hence, prays to dismiss the appeal. 11. The point that arises for consideration is:- “Whether the prosecution has proved the guilt of the accused for the offence punishable under Section 302 I.P.C. beyond all reasonable doubt?” 12. POINT:- In order to appreciate the same, it would be appropriate for us to refer to the evidence of the eye witnesses. P.Ws.1, 2 and 3, who were examined as eye witnesses to the incident, in their evidence, deposed that on 08.01.2014, in the afternoon, at 12 noon, there was a quarrel between the accused and the deceased, when the deceased commented about the accused coming late everyday. The grievance of the deceased appears to be that since the accused was coming late everyday, the entire burden of work, namely cutting of vegetables fell on him. The grievance of the deceased appears to be that since the accused was coming late everyday, the entire burden of work, namely cutting of vegetables fell on him. Thereafter, in the night, at about 8.00 p.m., after the last batch of students had their dinner and while the accused and deceased sat for dinner, a quarrel again ensued when the deceased again commented that the accused was not doing the work properly. Initially, the accused brought one knife from the mess but P.W.4 is said to have taken the knife from the hands of the accused. Thereafter, he brought a kurupi from the mess and with that, he is said to have beat on the head and face of the deceased. The material on record also shows that in the cross examination of P.W.1, it was elicited that he was present in the mess both in the afternoon and also in the night. It is also elicited in the cross examination that after the dinner of last batch of students in the mess, the workers take their dinner separately in the kitchen, during that process, a quarrel ensued. Initially, P.W.1 did not interfere when the quarrel was going on, but it appears from the record, that when the accused brought a knife from the mess, he took it from him but however, did not make any attempt to prevent the accused when he was taking kurupi on a premise that the accused was taking the kurupi for some other purpose. 13. P.W.2 was also examined as an eye witness to the incident. His evidence toes in line with the evidence of P.W.1 in all material aspects. In the cross examination, P.W.2 describes the weapon alleged to have been used by the accused. According to him, kurupi will have a plate but the plate of M.O.1 was broken and they were using M.O.1 to insert sticks in the oven (poyyi). P.Ws.3 and 4 also speak about their presence at the time of incident. 14. From the above evidence of P.Ws.1 to 4, which remained unimpeached, it can be held that the incident in question, namely the accused beating the deceased with kurupi pursuant to a quarrel which ensued between both of them while they were having dinner in the kitchen stands established. 15. 14. From the above evidence of P.Ws.1 to 4, which remained unimpeached, it can be held that the incident in question, namely the accused beating the deceased with kurupi pursuant to a quarrel which ensued between both of them while they were having dinner in the kitchen stands established. 15. As stated earlier, learned counsel for the appellant mainly contended that the prosecution has suppressed the genesis of the incident in view of the injuries on the accused. 16. Before dealing with the same, it is to be noted that the accused herein was apprehended by the staff of Sri Chaitanya College working in the mess and he was detained in the kitchen till the arrival of the police. Secondly, when the police arrived, on the next day morning, he complained of right hand shoulder pain pursuant to which, he was taken into custody and sent to hospital, where the Doctor opined that there was dislocation of shoulder and there were no visible injuries on the body of the accused. The discharge summary of the accused, which is placed on record as Ex.P-13, show anterior shoulder dislocation and the clinical note also indicate that he was assaulted by a known person at Nidamanuru Sri Chaitanya College campus by a college worker. Since the injury on the body was not visible, not disclosing about the same either in the F.I.R. or during the inquest, may not go to the root of the matter, doubting the incident in question. Dislocation of shoulder also may happen due to various reasons. It is not necessary that there should be an attack on him for the dislocation. The movements of the accused, by themselves may, at times, lead to dislocation of his shoulder. Therefore, the two judgments, which are relied upon the learned counsel for the appellant i.e., JAGDISH VS. STATE OF RAJASTHAN, (1979) A.I.R. (S.C.) 1010 and KUMAR VS. STATE REPRESENTED BY INSPECTOR OF POLICE, (2018) A.I.R. (S.C.) 2386, in our view, do not apply to the case on hand for the reason that in the said cases, there were bleeding injuries on the body of the accused, which remained unexplained. 17. Therefore, for the two reasons stated above, the plea taken by the accused that the prosecution has suppressed the genesis of the incident cannot be accepted. 18. 17. Therefore, for the two reasons stated above, the plea taken by the accused that the prosecution has suppressed the genesis of the incident cannot be accepted. 18. At this stage, it is to be seen whether the accused can be prosecuted for the offence punishable under Section 302 I.P.C? It is, no doubt, true that there was a quarrel between the accused and the deceased in the morning at 12 noon but thereafter, both of them worked in the kitchen cutting vegetables for dinner. Again, during dinner time, the deceased commented stating that the accused was not doing the work properly, which lead to a wordy quarrel, and thereafter, the accused initially brought a knife, which was taken away by P.W.4, and thereafter, while taking dinner, there was again a quarrel and then, the accused took a kurupi (which is a big garite) and gave blows on the head and face of the deceased. It cannot be said that the act of the accused in attacking the deceased is a planned one, as it is not the case of the prosecution that the accused came there armed with any weapon pursuant to the quarrel which took place. While taking dinner in the kitchen, he picked up M.O.1 which was lying in the kitchen/mess and then, attacked the deceased by giving couple of blows. As observed by the Hon’ble Supreme Court in catena of judgments, it is not the number of blows which decide as to whether an offence amounts to culpable homicide amounting to murder, but the circumstances under which the incident took place has to be looked into. 19. Taking into consideration the manner and the circumstances in which the incident took place, we feel that it is a fit case where the accused can be convicted under Section 304 Part-II I.P.C. Hence, the nature of offence is altered from Section 302 I.P.C. to Section 304 Part-II I.P.C. and the sentence of imprisonment is reduced to seven (7) years while confirming the fine imposed. 20. In the result, the conviction and sentence recorded by the learned XII Additional Sessions Judge, Krishna at Vijayawada vide judgment, dated 16.02.2015, in Sessions Case No.277 of 2014 against the appellant/accused of the offence punishable under Section 302 I.P.C. are set aside. 20. In the result, the conviction and sentence recorded by the learned XII Additional Sessions Judge, Krishna at Vijayawada vide judgment, dated 16.02.2015, in Sessions Case No.277 of 2014 against the appellant/accused of the offence punishable under Section 302 I.P.C. are set aside. However, the appellant/accused is found guilty of the offence punishable under Section 304 Part-II I.P.C., and accordingly, he is convicted and sentenced to undergo rigorous imprisonment for a period of seven (07) years while confirming the fine imposed. The period of detention underwent by the appellant/accused during the course of investigation, trial of the case and after conviction shall be given set off under Section 428 Cr.P.C. 21. Accordingly, the Criminal Appeal is partly allowed. Miscellaneous petitions pending, if any, in this Criminal Appeal shall stand closed.