The main legal point established in the judgment is the determination of the nature of the offence committed by the appellant, whether punishable under Section 302, I. P. C. or under section 304, Part-II thereof, based on the evidence, post-mortem examination report, and legal provisions.

S. B. SINHA, J.

( 1 ) DELAY condoned.

( 2 ) LEAVE granted.

( 3 ) ON 17. 10. 2000, at about 3. 30 p. m. , the deceased manik Rao, a police constable, was walking down the street. P. W. 8 (B. Narasimha) was a vendor of guava. Manik Rao picked up four guavas from his vend but did not pay the price thereof. On being asked to do so, he allegedly said that the same would be paid latter. The appellant together with his son were doing some carpentry work on the same street. Apparently, a quarrel took place between P. W.-8 (B. Narasimha) and the said Manik rao. The appellant and his son intervened. The quarrel continued for 10-15 minutes. Allegedly, Appellant hacked the deceased Manik Rao with a badze (a heavy sharp axe like instrument used in the carpentry work) causing instantaneous death of the deceased. Appellant together with his son were charged for commission of murder of the said deceased Manik Rao.

( 4 ) T he prosecution, in support of its case, examined four eye witnesses. P. W. 1s (V. Narasimha Rao), presence on the scene however, has been doubted by the learned trial Judge. Learned Sessions Judge and the High Court have relied upon P. W.-2 to p. W.-4 (V. Damodar Rao, K. Narayana and Kammeta Anjaiah) to arrive at a conclusion that it was the appellant alone who had caused the aforementioned injuries to the deceased Manik Rao. Accused Nos. 1 and 3, who were the father and brother of the appellant, were acquitted.

( 5 ) A principal question which arises for our consideration is to whether in the aforementioned peculiar facts and circumstances of this case, the appellant can be said to have committed the offence punishable under Section 302, I. P. C. or under section 304, Part-II thereof.

( 6 ) IN view of the limited notice issued in this case, we would proceed on the basis that the appellant alone who had caused injuries to the deceased Manik Rao

( 7 ) BEFORE, however, we advert to the legal question as regards the nature of offence, we may notice that P. W.-15 (Dn M. Pavan Kumar) in his evidence on the basis of post-mortem examination report prepared by Dr. O. Butchi Babu Reddy stated that the following anti-mortem injuries were found on the dead body of Manik rao :

"1. Elliptical shaped penetrating incised wound with a length of 6 c. ms on either side, a diametre of 2 1/2 c. m at the centre and a depth of 8 c. ms extending upto the meninges on the left temporal region. Hematoma present below the meninges. (Diagram was drawn ).

2. Elliptical shaped incised wound adjoining the left clavical (with no fracture of clavical) present on the left side of anterior aspect of neck extending upto stomclavical joint on left side of 6 c. ms. on either side and a diametre of 2 1/2 c. m. at the centre and a depth of 10 c. ms.

with bleeding cutting through left carodids and all the great vessels of neck on left and also left bronchus. Bleeding extending upto left hilem.

3. A clearly incised triangular shaped injury measuring 7 c. ms. , 6 c. ms. and 3 1/2 c. ms. (triangle) and a depth of 4 c. ms. without the skin collaped and exposing external oblic and deltoid and other mussels groups with blood clots on them on the anterior aspect of left shoulder.

4. Incised wound 6 c. ms. X 2 c. ms. X 2 c. ms. on the left side of back with blood clots in the muscles. "

( 8 ) THE High Court, in its Judgment, refused to accept the plea of the appellant herein that the offence committed by him would not be one under Section 302 I. P. C. but under Section 304 Part-II thereof in the following words: "the learned counsel for the appellant further contends that there is no motive for the appellant/accused No. 1 to attack the deceased, and that there is inconsistency in the prosecution evidence i. e. P. W. 8, that it was the accused No. 2 that interfered first when the deceased refused to pay the price for the guava fruits and so, the case of the prosecution cannot be accepted. This discrepancy is not that much material nor is a ground to disbelieve the prosecution c