JUDGMENT : K.Sreenivasa Reddy, J. Accused No.1 in Sessions Case No.334 of 2011 on the file of the VI Additional District and Sessions Judge, Kadapa (for brevity ‘learned Additional Sessions Judge’), is the sole appellant. 2. Charge sheet was filed against accused Nos.1 to 8 for the offences punishable under Sections 148, 324, 307, 302, 307 read with 149 and 302 read with 149 of the Indian Penal Code, 1860 (for brevity ‘IPC’). Pending trial, accused Nos.3 and 6 died and case against them was abated. 3. Vide Judgment, dated 24.10.2016, the learned Additional Sessions Judge convicted the accused No.1 of the offence punishable under Section 302 IPC and sentenced him to undergo rigorous imprisonment for life and shall also pay a fine of Rs.3,000/- (Rupees three thousand only), in default of payment of fine, to undergo simple imprisonment for a period of two (02) months for the offence punishable under Section 302 IPC. A1 was found not guilty of the other charges and accordingly he was acquitted of the other charges. The other accused were found not guilty of the charges levelled against them and accordingly, they were acquitted of the said charges. 4. The substance of the charges as against accused is that, on 30.03.2011 at about 7.20 a.m. accused Nos.1 to 8, at the cycle shop of P.W.1, formed into members of unlawful assembly, armed with deadly weapons and with common object, beat one Thanneeru Raghu Ramaiah (hereinafter referred to, as ‘the deceased’) with iron rods indiscriminately and caused the death of the deceased. 5. Brief facts of the case of prosecution, are as follows: The material prosecution witnesses and the accused are all residents of M.J.Kunta village. All the prosecution witnesses and the accused are related to each other. P.W.1 is nephew of the deceased. P.W.2 is the younger brother of P.W.1. P.W.4 is the brother of P.W.1. P.W.7 is the wife of the deceased. P.W.8 is the daughter of the deceased and P.W.7. P.W.9 is the brother of the deceased. Accused Nos.2 and 8 are husband and wife. Accused Nos.1 and 7 are children of accused Nos.2 and 8. Accused Nos.3 to 5 are brothers-in-law of accused No.1. Accused No.6 is the close associate of accused No.2. Accused No.2 is the son of the deceased elder sister. P.W.9 is the brother of the deceased. Accused Nos.2 and 8 are husband and wife. Accused Nos.1 and 7 are children of accused Nos.2 and 8. Accused Nos.3 to 5 are brothers-in-law of accused No.1. Accused No.6 is the close associate of accused No.2. Accused No.2 is the son of the deceased elder sister. On 30.03.2011 at about 7.00 a.m. P.W.1 went to the cycle shop situated at M.J.Kunta village and opened the shop. He was keeping articles in the shop outside for his business purpose. At about 7.10 a.m. the deceased went to P.W.1’s shop; P.W.1 gave him paper and the deceased sat on the chair at P.W.1’s shop and was reading newspaper. At about 7.20 a.m. accused No.1 came there and beat the deceased with an iron rod on his head. P.W.1 raised cries and on that, P.Ws.2 and 3 went there. They all took the deceased to RIMS Hospital, Kadapa. They were asked to shift the deceased to Tirupathi Hospital and from there, they were asked to shift the deceased to Apollo Hospital, Chennai. The deceased was taken to Tirupathi Hospital by his daughter, son-in-law and other relatives. After shifting to Apollo Hospital, Chennai, P.W.1 went and saw the deceased. The deceased was treated in Apollo Hospital, Chennai for three days and thereafter, he was asked to take back to Kadapa. Then, the deceased was brought back to RIMS Hospital, Kadapa. Later, the deceased died at RIMS Hospital, Kadapa. As per P.W.1, there were disputes between accused and the deceased with regard to house site. On 30.03.2011 at about 10.30 a.m. P.W.19/Sub-Inspector of Police, Chinna Chowk Police Station, Kadapa received Ex.P17- Hospital Intimation from RIMS Hospital, Kadapa along with Ex.P1- statement of P.W.1. Basing on the same, P.W.19 registered a case in Crime No.60 of 2011 for the offences punishable under Sections 324, 147, 148 and 307 read with 149 IPC and issued Ex.P18-FIR to all the concerned. P.W.19 went to RIMS Hospital, Kadapa at about 11.30 a.m. and found the deceased was shifted to SVIMS Hospital, Tirupathi. P.W.19 visited the scene of occurrence situated at ‘Y’ Junction on the Rajampet route of RTC Bus Stand, Kadapa. He secured the presence of P.Ws.1 to 6, examined them and recorded their statements and got prepared Ex.P19-rough sketch of scene of offence. P.W.19 visited the scene of occurrence situated at ‘Y’ Junction on the Rajampet route of RTC Bus Stand, Kadapa. He secured the presence of P.Ws.1 to 6, examined them and recorded their statements and got prepared Ex.P19-rough sketch of scene of offence. On 03.04.2011, P.W.21, Inspector of Police, Chinna Chowk, on receiving Ex.P23-death intimation of the deceased, altered the section of law from Sections 324 and 307 IPC to Section 302 IPC and issued Ex.P22-altered FIR. P.W.21 visited the SVIMS Hospital, Kadapa and secured the presence of blood relatives and panchayatdars, conducted inquest over the dead body of the deceased from 9.00 a.m. to 12.00 noon and got drafted Ex.P10- Inquest Report. P.W.20, the Civil Assistant Surgeon, RIMS Hospital, Kadapa examined the deceased at 7.55 a.m. on 30.03.2011 and issued copy of case sheet of the deceased, opining that the injury Nos.1 to 3 are fresh and simple in nature. P.W.17, Professor and HOD of Forensic Medicine, RIMS Medical College, Kadapa, on requisition, conducted autopsy over the dead body of the deceased and issued Ex.P16-Post Mortem Certificate. According to P.W.17, the deceased appear to have died due to shock and haemorrhage associated with brain damage as a result of head injury. On 07.04.2011, on receipt of credible information, P.W.21 arrested the accused in the presence of P.W.16 and L.W.22/ Munugolu Ramesh. On receipt of FSL report and other relevant documents, the successor of P.W.21 filed the charge sheet against the accused. 6. In support of its case, the prosecution examined P.Ws.1 to 21 and marked Exs.P1 to P24 and M.Os.1 to 7 on behalf of prosecution. On behalf of defence, Exs.D1 to D7 were marked. 7. The plea of the accused is one of denial. 8. Learned counsel appearing on behalf of the appellant/ accused No.1 submitted that the learned Additional Sessions Judge relied upon the testimony of P.Ws.1 and 2 which is full of contradictions and discrepancies. Learned counsel appearing on behalf of the appellant further submitted that P.W.12 is a chance witness and much credence need not be given to his testimony, for the reason that P.W.12 did not disclose the said incident for a period of more than three days till he was examined by the Investigating Officer on 03.04.2011. It is his further submission that the motive that has been attributed against the appellant/accused No.1 viz. It is his further submission that the motive that has been attributed against the appellant/accused No.1 viz. accused No.2 bore grudge against the deceased as he gave an advice to accused No.2 in a dispute between accused No.2 and P.W.9, is very weak. He further contends that medical evidence does not corroborate with the ocular evidence. The alleged incident is said to have taken place on 30.03.2011, whereas the deceased is said to have died after lapse of four days. The learned Additional Sessions Judge has not considered the evidence on record in right perspective and erred in convicting and sentencing the accused No.1. Hence, he prays to set-aside the impugned judgment. 9. On the other hand, learned Assistant Public Prosecutor submits that the evidence of P.W.1 is trustworthy and nothing has been elicited in the cross-examination of P.W.1 to tilt the case of the prosecution. According to him, the Judgment of the learned Additional Sessions Judge is a well-reasoned and calls for no interference by this Court. Hence, prays to dismiss the appeal. 10. Now the point for determination: Whether the prosecution is able to bring home the guilt of the appellant herein/accused No.1 for the charge levelled against him beyond reasonable doubt and whether the conviction and sentence passed by the learned Additional Sessions Judge is sustainable or not? 11. P.W.1, who is relative of the deceased, deposed that on the date of the incident he went to his shop at about 7.00 a.m; he kept the articles in the shop outside, for business purpose; at about 7.10 a.m., the deceased went to his shop; P.W.1 gave him paper and the deceased was sitting in the chair at his shop and was reading the newspaper. He further deposed that at about 7.20 a.m., accused No.1 went to the shop of P.W.1, beat the deceased with an iron rod on his head and, thereupon the deceased sustained injury. P.W.1 raised cries and on hearing cries, P.Ws.2 and 3 went there and took the deceased to RIMS Hospital, Kadapa. P.W.1 further deposed that the dispute between the accused and the deceased was with regard to house site. 12. A perusal of evidence of P.W.1 goes to show that a specific act has been attributed against accused No.1 and he further stated that there was a house site dispute between the accused and the deceased. P.W.1 further deposed that the dispute between the accused and the deceased was with regard to house site. 12. A perusal of evidence of P.W.1 goes to show that a specific act has been attributed against accused No.1 and he further stated that there was a house site dispute between the accused and the deceased. Apart from the same, there is absolutely no accusation that has been made as against accused No.2 or any of the accused who are charged for the offences. 13. P.W.1 further deposed that accused No.1 dealt one blow on the head of the deceased and the deceased received injury. 14. P.Ws.2, 3, 4, 5 and 6 did not support the prosecution case and they were treated hostile by the prosecution. 15. P.W.7 is the wife of the deceased. Her evidence is only hearsay. According to her, P.W.1 informed P.W.7 about the alleged incident at about 7.30 a.m. Thereafter, P.W.7 and relatives of the deceased shifted the deceased from RIMS Hospital, Kadapa to Tirupathi Hospital. 16. P.W.8 is the daughter of the deceased and P.W.7. She is not an eyewitness to the incident and her evidence is only hearsay. Her evidence would reveal that she came to know about the incident from her mother i.e. P.W.7. 17. P.W.9 is the brother of the deceased. He is also not an eyewitness to the incident. His evidence is only to the extent that on coming to know about the incident, he went to RIMS Hospital, Kadapa to see the deceased. 18. P.Ws.10 and 11 did not support the prosecution case and they were treated hostile by the prosecution. 19. P.W.12 is another eyewitness to the incident. According to him, on 30.03.2011 at about 7.30 and 7.45 a.m. he heard sound and on that, he saw towards the shop of P.W.1 and found accused No.1 beating the deceased with an iron rod. Thereafter, P.Ws.1 to 3 took the deceased to RIMS Hospital, Kadapa. He further deposed that there were disputes with regard to the house site between accused and one Venkata Ramana; on the previous day of the incident, the deceased chastised both the parties stating that he would talk to police. On the next day, the incident is said to have taken place. P.W.12 did not volunteer to inform the same to anyone. On the next day, the incident is said to have taken place. P.W.12 did not volunteer to inform the same to anyone. According to him, he was examined by the police on 03.04.2011 i.e. four days after the incident. He further deposed that he did not state before police as in Ex.D6 that accused No.1 along with accused No.2 beat on the head of the deceased with iron rods. He further deposed that he did not state before police as in Ex.D7 that the remaining persons, who went there along with accused No.2, beat the deceased with hands and kicked him with legs. 20. P.W.13 did not support the prosecution case and she was treated hostile by the prosecution. 21. P.W.20 is the Civil Assistant Surgeon, who examined the deceased at the earliest point of time. According to him, the deceased received three injuries i.e. (1) a fresh lacerated injury over scalp measuring 4 x 1 x 1 cm; (2) a depressed injury over the scalp measuring 10 x 5 cm and (3) a fresh lacerated injury over the scalp measuring 2 x 1 x 1 cm bleeding from nose, mouth is present. He further deposed that the injuries mentioned in Ex.P20-copy of case sheet of the deceased, are fresh and simple in nature, caused due to blunt object occurred within six (06) hours prior to his examination. 22. A perusal of the above evidence goes to show that P.W20- Doctor has categorically deposed that the injuries sustained by the deceased are simple in nature. There was no cross-examination with regard to that aspect by the prosecution. 23. P.W.17 is Professor and HOD, Forensic Medicine, RIMS Medical College, Kadapa, who conducted autopsy over the dead body of the deceased. According to him, he found three (03) external injuries. They are: (1) A sutured surgical wound present on top of right side head ‘U’ shape extending from right ear to the back of the head near the occiput 24 cms in length with steel suturing pins and skull deep; (2) A sutured surgical wound present on top of left side head ‘U’ shape extending from left ear to the back of the head near the occiput 26 cms in length with steel suturing pins and skull deep. The injuries noted in the wound certificate are found merged with the surgical sutured wounds and hence, the original injuries noted by the Casualty Medical Officer are not appreciated; (3) A sutured surgical wound on front of right side abdomen in its middle with 8 stitches 7 cms in length with steel pins. Internally on opening the abdomen skull bone pieces 2 in number were found over the muscles of the abdominal wall underneath the external injury; 24. According to P.W.17, apart from surgical wounds, the deceased sustained two (02) internal injuries. They are: (1) Internally on opening the head contused haematoma of the scalp black in colour on the top and sides. Right side parieto temporal skull bones to a size of 13 x 8 cms are found removed and the removed skull bones and menenges were kept in the abdominal cavity; (2) Multiple depressed fractures of skull bones found on the top of the skull in an area of 15 x 10 cms left parietal bone broken into multiple pieces and with intact here and there. Laceration of brain present on right side with blood clots. Fracture of base of skull present. 25. P.W.17 further deposed that the external injuries are possible with M.Os.2 and 7. 26. A perusal of entire evidence brought on record goes to show that except the evidence of P.W.1, there are no eyewitnesses to the incident. All the other eyewitnesses to the incident did not support the prosecution case and they were treated hostile. P.W.1 deposed to the extent that it is accused No.1, who dealt a blow on the head of the deceased with an iron rod. On the other hand, P.W.20-Civil Assistant Surgeon deposed that three injuries were found on the head of the deceased. It is not the case of the prosecution that the other accused dealt blows on the deceased. 27. P.W.17, Professor, who conducted autopsy over the dead body of the deceased, found two (02) internal injuries apart from three (03) surgical wounds on the body of the deceased. According to him, external injuries are possible with M.Os.2 and 7. 28. The case of prosecution is silent as to who, whether accused No.1 or accused No.2, caused the vital blow to the deceased. According to him, external injuries are possible with M.Os.2 and 7. 28. The case of prosecution is silent as to who, whether accused No.1 or accused No.2, caused the vital blow to the deceased. Learned Additional Sessions Judge gave benefit of doubt to accused No.2 as there is no evidence to show that accused No.2 dealt a blow on the deceased. On the other hand, a perusal of the evidence of P.W.1 goes to show that it is accused No.1 who dealt one blow on the deceased. By virtue of the same, it can safely be inferred that accused No.1 had no intention to cause death of the deceased, since the accused No.1 had dealt one blow on the deceased which caused his death. 29. Learned counsel appearing on behalf of the appellant herein/ accused No.1 placed reliance on the proposition of law laid down in Baul and another Vs. State of U.P., AIR 1968 SC 728 , wherein the Hon’ble Supreme Court, at paragraph Nos.6 and 7, held as under: “6. The next submission of Mr. Chakravarty needs some attention. According to Mr. Chakravarty the offence charged against Sadhai was commission of murder in furtherance of the common intention of two persons, that is, himself and Ramdeo. The Sessions Judge held that both had taken part in the assault in furtherance of a common intention and logically the Sessions Judge was right in his conclusion that if there was a common intention both Sadhai and Ramdeo were responsible for the offence of murder. When the High Court acquitted the other accused (Ramdeo) the High Court converted the conviction from Section 302/34 to Section 302 simpliciter. In other words, the High Court held Sadhai responsible for all the injuries which had been caused to the deceased. Mr. Chakravarty submits that in a case of this type where four blows were hit on the head by two persons it would be difficult to say who hit which blow and whether whose blow or blows was responsible for the fracture of the skull. He contends that if Section 34 was available this argument would not be open, but in the absence of common intention the prosecution case cannot be held proved against Sadhai and he made responsible for all that was caused to the deceased. He contends that if Section 34 was available this argument would not be open, but in the absence of common intention the prosecution case cannot be held proved against Sadhai and he made responsible for all that was caused to the deceased. He submits that there should be some evidence to show that the injury which Sadhai caused to the deceased was at least one of the two major injuries and not one of the two minor injuries. According to him this raises a doubt in his case and Sadhai’s offence cannot be under Section 302 simpliciter. 7. No doubt the original prosecution case showed that Sadhai and Ramdeo both hit the deceased on the head with their lathies. One is tempted to divide the two fatal injuries between the two assailants and to hold that one each was caused by them. If there was common intention established in the case the prosecution would not have been required to prove which of the injuries was caused by which assailant. But when common intention is not proved the prosecution must establish the eact nature of the injury caused by each accused and more so in this case when one of the accused has got the benefit of the doubt and has been acquitted. It cannot, therefore, be postulated that Sadhai alone caused all the injuries on the head of the deceased. Once that position arises the doubt remains as to whether the injuries caused by Sadhai were of the character which would bring his case within Section 302. It may be that the effect of the first blow became more prominent because another blow landing immediately after it caused more fractures to the skull than the first blow had caused. These doubts prompt us to give the benefit of doubt to Sadhai. We think that his conviction can be safely rested under Section 325 of the Indian Penal Code, but it is difficult to hold in a case of this type that his guilt amounts to murder simplicitor because he must be held responsible for all the injuries that were caused to the deceased. We convict him instead of Section 302 for an offence under Section 325 of the Indian Penal Code and set aside the sentence of imprisonment for life and instead sentence him to rigorous imprisonment for seven years.” 30. We convict him instead of Section 302 for an offence under Section 325 of the Indian Penal Code and set aside the sentence of imprisonment for life and instead sentence him to rigorous imprisonment for seven years.” 30. This Court perused the Judgment relied upon by the learned counsel for the appellant herein/accused No.1. In the aforesaid judgment, four blows were hit on the head by two persons and it is difficult to say as to who hit which blow and whether whose blow or blows are responsible for the fracture of the skull. In similar circumstance, there is no evidence forthcoming as to who hit the blow which is vital in nature. 31. When one of the accused was given benefit of doubt and acquitted, it cannot, therefore, be postulated that the accused No.1 had dealt one blow on the head of the deceased. In view of the aforesaid reasons, conviction under Section 302 IPC cannot be made out as against the accused No.1, since there is no intention on his part to cause death of the deceased. In the absence of any evidence to show that he dealt the second blow on the head of the deceased, this Court is of the view that accused No.1 is liable to be convicted for the offence punishable under Section 326 IPC. 32. Accordingly, the conviction and sentence recorded by the learned Judge, Family Court-cum-V Additional District Judge, Kadapa vide Judgment, dated 24.10.2016 in Sessions Case No.334 of 2011 against the appellant herein/accused No.1 for the offence punishable under Section 302 IPC is set-aside and he is acquitted of the said charge. The appellant herein/accused No.1 is found guilty of the offence punishable under Section 326 IPC and he is convicted of the said charge under Section 235 (2) CrPC and he is sentenced to undergo imprisonment which is already undergone by him during investigation, trial and after conviction. The fine amount, if any, paid by the appellant herein/accused No.1, shall be refunded. 33. With the above modification, the Criminal Appeal No.1323 of 2016 is partly allowed. 34. The appellant herein/accused No.1 was enlarged on bail as per the Order of this Court dated 10.12.2021 vide I.A.No.1 of 2021, in view of the Judgment of the combined High Court in Batchu Ranga Rao Vs. State of Andhra Pradesh, Crl.A.M.P.No.1687 of 2016 in Crl.A.No.607 of 2011, dated 02.11.2016. 34. The appellant herein/accused No.1 was enlarged on bail as per the Order of this Court dated 10.12.2021 vide I.A.No.1 of 2021, in view of the Judgment of the combined High Court in Batchu Ranga Rao Vs. State of Andhra Pradesh, Crl.A.M.P.No.1687 of 2016 in Crl.A.No.607 of 2011, dated 02.11.2016. Hence, the appellant herein/accused No.1 is directed to appear before the Superintendent, Central Prison, Kadapa, for completing necessary legal formalities. As a sequel, pending miscellaneous petitions, if any, shall stand closed.