AND CRIMINAL APPEAL Nos.1133 of 2017 and 1278 of 2016 COMMON JUDGMENT: (per The Hon'ble Sri Justice K.SURENDER)

Criminal Appeal No.1133 of 2017 is filed by the father of the deceased (PW.1), aggrieved by the Judgment dated 28.11.2016, passed by the VIII Additional Sessions Judge, Miryalaguda, in S.C.No.21 of 2015, whereby the learned Judge acquitted the accused under Section 302 of the Indian Penal Code and convicted him under Section 304-II of the Indian Penal Code.

2. Criminal Appeal No.1278 of 2016 is filed by the accused, aggrieved by the conviction recorded by the VIII additional Sessions Judge, Miryalaguda, in SC.No.21 of 2015 dated 28.11.2016, under Section 304-II of the Indian Penal Code, and sentenced to undergo Rigorous Imprisonment for a period of four years and to pay a fine of Rs.2,000/- for the offence under Section 304-II IPC.

3. Heard learned counsel for the appellant in Crl.A.No.1278 of 2016, learned counsel for the appellant in Crl.A.No.1133 of 2017, and Sri Arun Kumar Dodla, learned Additional Public Prosecutor, Sri M.Vivekananda Reddy, learned Assistant Public Prosecutor appearing for the respondent-State.

4. According to the case of the prosecution, on 15.10.2014, PW.1, who is the father of the deceased, his wife, wife of the accused, the accused and PW.3 were present on the disputed land for the purpose of partitioning and fixing the boundaries of the said land. PW.1, the accused, and PW.4 are brothers. There was a quarrel while the boundaries were being marked. S.Kishan/deceased, who is the son of PW.1, went there and tried to intervene, upon which the accused picked up a boulder and hit the deceased on his head, as a result of which he fell and received the following injuries:

i. Contusion over left ear auricle 2 cm x 2 cms. ii. Contusion behind the left ear 3 cm x 2 cms.

iii. Scalp hematoma in left side of occipital region 5 cms. x 3 cms.

iv. A large hematoma is extending from left temporal lobe to occipital lobe 12 x 10 cms.

v. Cerebellar hematoma is present on left side 4 cms. x 4 cms.

5. PW.1 went to the police station and lodged a complaint. The said complaint was registered and Police took up the investigation, arrested the accused, and thereafter filed a charge sheet for the offence under Section 302 of the Indian Penal Code.

6. The learned Sessions Judge convicted the accused relying on the evidence of PW.1, who is the father of the deceased, and PW.2, the brother of the deceased, who narrated that, on the date of the incident, the accused beat the deceased with a stone.

7. Learned counsel appearing for the accused would submit that, when PW.11-postmortem doctor was questioned, he stated that injuries Nos.1 to 5 were possible if a person falls from a height and on hard surface. The deceased intervened in the quarrel that was going on, and fell on the ground, resulting in injuries and his death. Since the fall of the deceased was accidental, the learned counsel prays that the conviction under Section 304-II is liable to be set aside.

8. On the other hand, the learned counsel appearing on behalf of the deceased submits that the act of the accused in causing injury with a boulder is deliberate, and his intention to commit the murder of the deceased is apparent. The injury was on the head, which is a vital organ, as such, the accused has to be convicted under Section 302 of the Indian Penal Code, and that the learned Sessions Judge erroneously convicted the accused under Section 304-II of the Indian Penal Code.

9. The fact that the deceased, PW.1, PW.4, and the accused are closely related is not disputed. It is also not in dispute that PW.1, along with the wife of the accused and PW.3, demarcated their lands by fixing boundaries. There were heated arguments and a quarrel about the fixing of boundaries between PW.1 and the accused. When the deceased went there and tried to intervene, the accused picked up a boulder and hit the deceased on his head during the said heated argument.

10. It cannot be said in the prese