JUDGMENT : K.Sreenivasa Reddy, J. De facto complainant in Sessions Case No.90 of 2016 on the file of the XIII Additional Sessions Judge, Guntur at Narasaraopet (hereinafter referred to, as ‘the learned Sessions Judge’) is the appellant in the present Criminal Appeal No.1161 of 2016. Accused No.2 was tried for the offence punishable under Sections 302 read with 34 of the Indian Penal Code, 1860 (for brevity ‘IPC’) and acquitted of the said offence in terms of Section 235 (1) of the Code of Criminal Procedure, 1973 (for brevity ‘CrPC’). Accused No.1 was tried and found not guilty of the offence punishable under Section 302 IPC, but found guilty for the offence punishable under Section 304 Part-II IPC and convicted in terms of Section 235 (2) CrPC vide Judgment, dated 06.09.2016 and sentenced to undergo rigorous imprisonment for a period of seven (07) years and to pay a fine of Rs.2,000/-, in default of payment of fine, he was directed to suffer simple imprisonment for a period of six (06) months. Challenging the conviction and sentence vide Judgment, dated 06.09.2016, accused No.1 preferred Criminal Appeal No.916 of 2016. Whereas, de facto complainant preferred Criminal Appeal No.1161 of 2016 challenging the acquittal of accused No.2 and for not convicting accused No.1 of the offence punishable under Section 302 IPC. 2. On 09.07.2024, Sri G.V.S.Mehar Kumar, learned counsel for the appellant/accused No.1 in Criminal Appeal No.916 of 2016 submitted that during the pendency of the Criminal Appeal No.916 of 2016, the appellant/accused No.1 died in a road accident; as such, he submitted that Criminal Appeal may be dismissed as abated. This Court directed the learned counsel to file a memo along with Death Certificate of appellant in Criminal Appeal No.916 of 2016 i.e. accused No.1. Further, the learned Special Public Prosecutor was also directed to get instructions about the factum of death of the appellant in Criminal Appeal No.916 of 2016. Accordingly, learned Special Public Prosecutor, on instructions, submitted that the appellant/accused No.1 died on 10.06.2021 and filed death certificate to that effect. Accordingly, on 20.07.2024, Criminal Appeal No.916 of 2016 preferred by appellant/accused No.1 was dismissed as abated. 3. The substance of the charges as against the accused is that accused No.1 on 23.03.2015 in the fields of Agnigundala village at about 6.00 AM, caused the death of the deceased viz. Accordingly, on 20.07.2024, Criminal Appeal No.916 of 2016 preferred by appellant/accused No.1 was dismissed as abated. 3. The substance of the charges as against the accused is that accused No.1 on 23.03.2015 in the fields of Agnigundala village at about 6.00 AM, caused the death of the deceased viz. Thirumalasetty Venkata Kotaiah @ Chinni (hereinafter referred to, as ‘the deceased’) by beating him with an iron rod and thereby committed an offence punishable under Section 302 IPC. In respect of accused No.2, on the same day, accused No.2 instigated accused no.1 to get rid of the deceased which lead to cause death of the deceased and thereby committed an offence punishable under Section 302 read with 34 IPC. 4. The case of the prosecution, in brief, is as follows: The deceased and the material prosecution witnesses are all residents of Agnigundala village. P.W.1 is the son of the deceased. P.Ws.2 and 3 are cousins of P.W.1 and related to accused Nos.1 and 2. P.W.3 is cousin of P.W.1. The prosecution witnesses and accused are related to each other. P.W.1 owns Ac.2.30 cents of wetland situated on the eastern side of their village. Their family was cultivating Ac.1.00 cent which was adjacent to their land belonged to one Sandra Peda Kondaiah of Mukallapadu village, on lease. Accused No.1 was having Ac.0.80 cents of land on eastern side of P.W.1’s land. Accused No.2 is having Ac.2.00 cents of land on northern side of their land. The level of P.W.1’s land was a bit higher than the level of the land of accused, as such, the water flows to the land of the accused from P.W.1’s land. Even the waste/drain water also flows from P.W.1’s land to the land of accused. In connection with that, disputes arose among themselves many a time. As they are all relatives, no cases were filed against the accused. On 23.03.2015 at about 5.30 AM, P.Ws.1 and 4 went to their field on bike for watering their field. P.W.4 dropped P.W.1 at his field and left to his field which is nearer to P.W.1’s field. The land of P.W.4 is situated by the side of one Kalla Linga Rao. P.W.1 arranged temporary bund to field channel and diverted water to his field. Around 6.00 AM on that day, the deceased came to his field. P.W.4 dropped P.W.1 at his field and left to his field which is nearer to P.W.1’s field. The land of P.W.4 is situated by the side of one Kalla Linga Rao. P.W.1 arranged temporary bund to field channel and diverted water to his field. Around 6.00 AM on that day, the deceased came to his field. After the arrival of the deceased, P.W.1 left for home, leaving the deceased at the field. Around 7.00 AM on the same day, P.W.4 brought the deceased on his bike and made him lay on the pial in front of their house. At that time, P.W.1, P.W.1’s mother and others were present in their house. On inquiry, the deceased informed that both the accused beat him. The deceased further informed that accused No.1 removed the temporary bund laid by the deceased to the field channel, for which he objected. In connection with that, the accused beat him. Thereafter, P.W.1 shifted the deceased to the Government Hospital at Vinukonda, in an auto. On 23.03.2015 at about 9.30 AM, P.W.7, Head Constable attached to Vinukonda Police Station, on receiving Ex.P9-admission intimation of the deceased, from the Medical Officer, Government Hospital, Vinukonda, proceeded to the Government Hospital, identified the injured and recorded Ex.P10-statement of the deceased in the presence of the said Doctor. On 23.03.2015 around 3.00 PM, P.W.9, Sub-Inspector of Police, Ipuru Town Police Station, on receipt of Ex.P9-admission statement along with Ex.P10-statement of the deceased, registered it as a case in Crime No.28 of 2015 for the offence punishable under Section 324 read with 34 IPC against the accused and issued Ex.P12-FIR. P.W.9 took up investigation and on coming to know that the deceased was shifted to Lalitha Super Speciality Hospital, Guntur for better treatment, he proceeded to the said hospital, examined the deceased and recorded his statement under Ex.P13. Thereafter, P.W.9 examined P.W.1 and others and recorded their statements. On 24.03.2015 P.W.9 visited Agnigundala village and examined P.W.9 and others and recorded their statements. P.W.9 seized M.Os.1 to 3 and prepared Ex.P14-rough sketch of scene of offence. At the scene of offence, P.W.9 examined P.Ws.2 and 3 and recorded their statements. On 28.03.2015 at about 6.30 AM, P.W.9, on receiving Ex.P15-death intimation, altered the section of law from Section 324 read with 34 IPC to Section 302 read with 34 IPC and issued Ex.P16-alteration memo. At the scene of offence, P.W.9 examined P.Ws.2 and 3 and recorded their statements. On 28.03.2015 at about 6.30 AM, P.W.9, on receiving Ex.P15-death intimation, altered the section of law from Section 324 read with 34 IPC to Section 302 read with 34 IPC and issued Ex.P16-alteration memo. On 28.03.2015 at about 6.00 AM, P.W.10, Inspector of Police, Vinukonda Rural Circle, on receiving death intimation of the deceased, took up further investigation, verified the investigation made by P.W.9 and found it on correct lines. P.W.10 conducted inquest over the dead body of the deceased and got drafted Ex.P5- inquest report. During inquest, P.W.10 examined P.W.1 and others and recorded their statements. On 28.03.2015, P.W.8, the Assistant Professor, Department of Forensic Medicine, Guntur Medical College, Guntur conducted autopsy over the dead body of the deceased and issued Ex.P11- Post Mortem Certificate. According to the Doctor, the death of the deceased is due to Intra Cerebral Bleeding and Associated with other injuries. On 04.04.2015, on information, P.W.10 along with his staff and mediators proceeded to Agnigundala village and arrested the accused and got remanded them to judicial custody. After completion of investigation, P.W.10 filed the charge sheet. 5. In support of its case, prosecution examined P.Ws.1 to 11 and got marked Exs.P1 to P21. Ex.D1 was marked on behalf of the defence. On behalf of prosecution, M.Os.1 to 4 were marked. 6. The plea of appellant herein/accused is one of denial. 7. Learned counsel appearing on behalf of the appellant submits that though there is no direct eyewitness to the incident, the statement of the deceased recorded under Ex.P10 is suffice to prove the guilt of the accused and it is corroborated with the evidence of P.Ws.1 and 2 and thus, there is cogent and convincing evidence to convict the accused No.2 for the offence. 8. Learned Public Prosecutor appearing for the respondent No.1 herein/State would contend that the State did not prefer any appeal against the acquittal of accused No.2 and he concurred with the contentions raised by the learned counsel for the appellant. 9. On the other hand, learned counsel appearing for the respondent No.2 herein/accused No.2 submitted that the Judgment of the learned Sessions Judge is a well-reasoned Judgment and it calls for no interference by this Court. There is no reliable evidence placed by the prosecution to prove the guilt of the accused No.2. 10. 9. On the other hand, learned counsel appearing for the respondent No.2 herein/accused No.2 submitted that the Judgment of the learned Sessions Judge is a well-reasoned Judgment and it calls for no interference by this Court. There is no reliable evidence placed by the prosecution to prove the guilt of the accused No.2. 10. In the light of the above contentions, the point that would arise for consideration in this Criminal Appeal is:- “Whether the prosecution is able to bring home the guilt of the accused No.2 for the charge levelled against him, beyond all reasonable doubt?” 11. A perusal of Judgment of the learned Sessions Judge, it is evident that the learned Sessions Judge disbelieved the evidence of P.Ws.2 and 3 happened to be a chance witness to the alleged incident. P.W.4, on 23.03.2015 around 5.30 AM, said to have taken P.W.1 to his field and dropped him there. 12. A perusal of the evidence of P.Ws.2 and 3, who are arrayed as eyewitnesses to the incident, they, in one voice, deposed that on 23.03.2015 around 6.00 AM, they went to their respective fields and around 7.00 AM, they heard cries of A2; on that they rushed to the scene and found A1-Rama Kotaiah beating the deceased. Whereas, P.W.2 specifically deposed that he found A1 beating the deceased with an iron rod on his legs and A2-Venkatramaiah was instigating A1 to kill the deceased. During cross-examination of P.W.2, he denied the suggestion put-forth by the learned defence counsel that he omitted to state to police that he visited his land around 6.00 AM on 23.03.2015 and that around 7.00 AM, he heard the voice of A2 as and that by the time he rushed there, by which time A1-T.Rama Kotaiah @ Rama Koti was beating the deceased Venkata Kotaiah with an iron rod on his legs and A2- Venktramaiah was instigating A1 to kill the deceased and in the meanwhile, P.W.4 came there and that the injured was taken to Vinukonda Hospital, from there, the injured was shifted to Lalitha Super Speciality Hospital, Guntur for better treatment from there to GGH, Guntur, where he succumbed to injuries. 13. Coming to the evidence of P.W.3, he deposed that he found A1-Rama Kotaiah beating the deceased-Venkata Kotaiah with iron rod on his legs, head and hands and A2-Venkatramaiah was instigating A1 to kill the deceased. 13. Coming to the evidence of P.W.3, he deposed that he found A1-Rama Kotaiah beating the deceased-Venkata Kotaiah with iron rod on his legs, head and hands and A2-Venkatramaiah was instigating A1 to kill the deceased. His evidence is also to the effect that, on seeing him and his cousin-P.W.2, both the accused left the scene of offence. In cross-examination, he denied the suggestion that he omitted to state to police that he own Ac.0.60 cents of wetland situated on the eastern side of their village abutting the road leading to Srinagar village and that P.W.2 is having land on southern side of his land and that on the eastern side and western side of his land, lands of deceased-Venkata Kotaiah, A1-T.Rama Kotaiah and A2-T.Venkatramaiah are situated. It is further elicited in his cross-examination that P.W.4 is not having land nearby his land. Another material omission elicited in the cross-examination of P.W.3 is that he denied the suggestion that he omitted to state to police by the time he reached place of incident, A1-T.Ramakotaiah @ Ramakoti was beating the deceased-Venkata Kotaiah with an iron rod on his legs, head and hands and A2-Venkatramaiah was instigating A1 to kill the deceased. He further deposed that A2 was found on the road while A1 was beating the deceased. 14. A perusal of evidence of P.Ws.2 and 3 would go to show that if really they rushed to the scene of offence and found A1 beating the deceased on the instigation of A2, they would not have missed to state the said fact to the investigating officer during their examination under Section 161 CrPC. The omissions elicited during the cross-examination of P.Ws.2 and 3 by the defence are all material omissions which would go to the very root of the prosecution case. Furthermore, the injured i.e. the deceased did not state in his Ex.P10-statement to P.W.7 about the presence of P.Ws.2 and 3 at the scene of offence. 15. This Court perused Ex.P10-dying declaration of the deceased made to P.W.7/Head Constable. As per the dying declaration, on 23.03.2015 around 6.00 AM, the deceased went to the fields to arrange water to the field. Prior to him, P.W.1 went to the field, arranging hurdle to the water flowing by name Madava. After the arrival of the deceased, P.W.1 went to home to collect milk. 16. As per the dying declaration, on 23.03.2015 around 6.00 AM, the deceased went to the fields to arrange water to the field. Prior to him, P.W.1 went to the field, arranging hurdle to the water flowing by name Madava. After the arrival of the deceased, P.W.1 went to home to collect milk. 16. The deceased went to his own field situated in the lower area. After seeing the field, he returned to the lease land and noticed hurdle of water flowing (madava) was removed. While he was arranging it, accused No.1 came and in high-handed manner removed the hurdle arranged by the deceased. Then, the deceased informed accused No.1 that on the previous day and two days before, accused No.1 arranged water to the field, the deceased did not remove the hurdle and as to why on that day, the accused No.1 was causing inconvenience in watering the field belonging to the deceased. In connection with that, a quarrel ensued between deceased and accused No.1. While the deceased bent to arrange hurdle, accused No.1 pushed the deceased and the deceased fell down. Then, accused No.1 took an iron rod and beat the deceased on his left leg, right knee and left shoulder. Thereafter, accused No.2 i.e. appellant herein, was present, rushed to the scene and shouted to beat the deceased. Then, the deceased raised cries. On hearing his cries, P.W.4, present in the neighbouring field, rushed to the scene and shouted as not to beat the deceased and he will die. Then, they went away. P.W.4 shifted the deceased to his house on his motorcycle. 17. Even, a perusal of Ex.P10-dying declaration goes to show that on the date of the incident, a quarrel ensued between accused and the deceased with regard to removal of hurdle. In connection with that, accused No.1 pushed the deceased and when the deceased fell down, accused No.1 was alleged to have taken an iron rod and beat the deceased on both his legs. The appellant herein/accused No.2 rushed to the scene and instigated accused No.1 to beat the deceased and when the deceased raised cries, P.W.4 rushed to field of the deceased by shouting not to beat the deceased. Thereafter, both accused went away from the said place. 18. The entire evidence on record goes to show that accused No.1 had no intention of causing death of the deceased. Thereafter, both accused went away from the said place. 18. The entire evidence on record goes to show that accused No.1 had no intention of causing death of the deceased. The alleged incident was said to have taken place on the spur of moment, because of the same, the learned Sessions Judge convicted the accused No.1 for the offence punishable under Section 304 Part-II IPC instead of Section 302 IPC. Since accused No.1 died in a road accident, this Court dismissed the Criminal Appeal No.916 of 2016 as abated on 09.07.2024. 19. Insofar as accused No.2 is concerned, the only accusation as against him is that he alleged to have instigated accused No.1 to deal with blows on the deceased. Apparently, a perusal of evidence brought on record, in pursuant to the instigation made by accused No.2, no blow was dealt on the deceased. It is clear from the record that accused No.1 did not deal with a blow on the deceased only because the appellant herein/accused No.2 instigated accused No.1 to beat the deceased. The alleged dealting of blows by accused No.1 had happened prior to the shouting/instigation of accused No.2. In pursuant to the instigation, there were no blows dealt on the deceased by accused No.1. Accused No.1 had dealt blows prior to arrival of accused No.2. In view of the said reasons, the learned Sessions Judge had rightly acquitted the accused No.2 of the offence punishable under Section 302 read with 34 IPC. 20. The learned Sessions Judge, on proper appreciation of entire oral and documentary evidence on record, rightly found the appellant herein/accused No.2 not guilty of the offence and accordingly, acquitted the accused No.2 of the charge levelled against him, which warrants no interference by this Court. 21. In the result, the Criminal Appeal No.1161 of 2016 is dismissed confirming the Judgment, dated 06.09.2016 passed in Sessions Case No.90 of 2016 by the learned XIII Additional Sessions Judge, Guntur at Narasaraopet. As a sequel, pending miscellaneous petitions, if any, shall stand closed.