Judgment : This Criminal appeal has been filed by Subramaniam, the accused in Sessions Case No.15 of 1977 on the file of the Court of Sessions, Pondicherry Division, against the conviction of the accused by the Second Additional Sessions Judge, Pondicherry of an offence punishable under section 325, Indian Penal Code and the sentence of Rigorous Imprisonment for six months awarded to him for that offence holding that the offence of murder punishable under section 302, Indian Penal Code for which the accused was tried has not been made out by the prosecution. The accused Subramaniam is the brother of Balaraman P.W. 12, while Velmurugan P.W. 1 is the brother of the deceased Subramanian,thevictim in this case. Arumugam P.W. 3 and Maruvu alias Sambasivam P.W.6 are the sons of Egambaram P.W. 8. The accused and his brother P.W. 12, P.Ws. 1, 3, 6 and 8 are residents of Maduvapet which is within the territorial jurisdiction of D. Nagar Police Station, Pondicherry. On 3rd July, 1977 P.W. 12 quarrelled with P.W.8 on the allegation of P.W. 12 that P.W. 8 was grazing his cattle in the filed of P.W. 12. In that quarrel, P.W. 12 slapped and kicked P.W.8 near his abdomen, and P.W. 6 the son of P.W. 8 separated them. P.W. 8 informed his other son P.W. 3 about that incident and he questioned P.Ws. 12 about why he beat P.W. 8. Then P.Ws. 3 and 12 fought with each other and subsequently P.Ws. 3, 8 and 12 went to Lawspet Police Station where P.W. 12 gave a report Exhibit P. 7 to the Assistant Sub-Inspector of Police P.W. 12 alleging that there was a quarrel between him and P.W. 8 at about 5a.m on 3rd July, 1977 about the cattle grazing in the field and later at 6 a.m. on that day P.W. 3 asked him (P.W. 12) near a motor shed situate close to the Lawspet toddy shop about why he beat his father P.W. 8 and that when he denied having beaten P.W.8. P.W. 3 fisted him on the left side of his chest and pushed him down. The Assistant Sub-Inspector of Police P.W. 16 who received Exhibit P.7 at 7.10 p.m. on 3rd July, 1977 sent P.Ws. 8 and 12 to the Government General Hospital Pondicherry with a constable. Dr. P.W. 3 fisted him on the left side of his chest and pushed him down. The Assistant Sub-Inspector of Police P.W. 16 who received Exhibit P.7 at 7.10 p.m. on 3rd July, 1977 sent P.Ws. 8 and 12 to the Government General Hospital Pondicherry with a constable. Dr. Prabhakara Rao.P.W.13, the Assistant Surgeon, Government General Hospital, Pondicherry, examined P.W. 8 at 8.25 p.m. on that day and found on him a contusion on the left side of the face, upper lip and cheek and tenderness on the left sub-costal region and issued the wound certificate Exhibit P. 10. On the same day at 8.35 p.m. P.W. 13 examined P.W. 12 and could not find any external injury on him and issued the certificate Exhibit P.9. P.W. 16 treated the offence in the case registered on Exhibit P.7 as non-cognizable and sent away P.Ws. 8 and 12 after warning them. 2. On 4th July, 1977 at 5 a.m. the accused asked P.W. 6, the brother of P.W. 3 and son of P.W. 8 as to why he beat P.W. 12 on the previous day. Though P.W. 6 denied having beaten P.W. 12, the accused beat P.W. 6. At that time, P.W. 3 went there, and P.W. 3 and the accused caught hold of each other and fought and fell down and the people there separated them. Subsequently, the accused and his brother P.W. 12 took the wooden frame M.O. 1 and a cart peg respectively and chased P.W. 3 towards the west. At that time the deceased Subramaniam was going north with a bottle in his hand for purchasing tea in Lawspet. Then the accused gave a blow with M.O. 1 on the head of the deceased which P.W. 1 witnessed from Mariamman temple. The accused was stunned at the incident and he stopped for a while but on seeing P.W. 1 proceeding towards his injured brother he ran away from the scene of the occurrence. The deceased fell down unconscious and bleeding after receiving the blow from the accused. P.W. 1 lifted up the deceased, his injured brother, and left him in the hands of the Chinnaponnu who came there and went to fetch water. When Nagammal, P.W.2, the sister of the deceased and P.W. 1 and Chinnaponnu were giving water to the deceased, P.W. 12 stood there. P.W. 1 lifted up the deceased, his injured brother, and left him in the hands of the Chinnaponnu who came there and went to fetch water. When Nagammal, P.W.2, the sister of the deceased and P.W. 1 and Chinnaponnu were giving water to the deceased, P.W. 12 stood there. When P.W. 1 slapped P.W. 12 and asked him about why the accused beat the deceased, and P.W. 12 told him that the accused beat the deceased due to mistaken identity, and so saying P.W. 12 left the place. Subsequently, P.W. 1 carried the deceased to Lawspet Police Station where he gave the report Exhibit p.1. In the report P.W. 1 had stated that when P.W. 3 was running near P.W. 1’s house chased by the accused, the deceased went with a bottle to purchase tea at Lawspet and the accused mistook him for P.W. 3 and beat him with a wooden frame and caused a bleeding injury on his head. 3. P.W. 16 sent the injured Subramaniam along with P.W. 1 and a constable to the Government General Hospital, Pondicherry where the injured was admitted as an inpatient P.W. 12 went to the Police Station at 8 p.m. on 4th July, 1977 and gave a report Exhibit P. 8 stating that he was beaten by P.W. 3. P.W. 16 sent P.W. 12 to the Government General Hospital, Pondicherry, where P.W. 12 also was admitted as an inpatient . 4. Then the Medical Officer General Hospital, Pondicherry, P.W. 14 examined the injured Subramaniam, the victim, at 11.25 A.M. on 4th July, 1977 and found an injury on the scalp of the deceased and sent the deceased who was vomiting, to the Emergency Surgical Ward, and later issued the certificate Exhibit P. 13. He examined P.W. 12 at 11.30 A.M. on 4th July, 1977 and found on him a deep wound with hematoma on the skull. He admitted him in the hospital for observation. He issued the wound certificate Exhibit P. 11 to P.W. 12 and another certificate Exhibit P. 12 to P.W. 12 on 8th July, 1977 after P.W. 12 was discharged from the hospital on 6th July, 1977. 5. The accused went to the Lawspet Police Station at 8.15 a. m. on 4th July, 1977 and gave the report Exhibit P. 19 and he was subsequently sent to the Government General Hospital, Pondicherry, with a Police Constable. 5. The accused went to the Lawspet Police Station at 8.15 a. m. on 4th July, 1977 and gave the report Exhibit P. 19 and he was subsequently sent to the Government General Hospital, Pondicherry, with a Police Constable. The Assistant Surgeon, Government General Hospital Pondicherry P.W. 15 examined the accused who was produced before him by the police constable with a requisition at 2.45 p.m. on 4th July, 1977, and found on him a contusion 2“x 1” on the right lower eye lid. He is of the opinion that the injury is simple and has issued the wound certificate Exhibit P. 14. 6. P.W. 1 was informed by the Doctor at the Government General Hospital, Pondicherry at 3.15 A.M. on 5th July, 1977 that the injured Subramaniam had died. He passed on that information to the Lawspet Police Station where P.W. 16 received the information to the effect that the injured Subramaniam died in the early hours of 5th July, 1977. At that time P.W. 1 gave the report Exhibit P.2 at the police station about the doctor informing him at 3.15 A.M. about the death of the deceased Subramaniam. 7. The then Sub-Inspector of Police, D. Nagar P.W. 17 received Exhibit P.1 and P. 2 with the endorsement Exhibit P.21 of P.W. 16 at 7 A.M. on 5th July, 1977, and he registered a case under section 302,Indian Penal Code. P.W.17 sent express reports to the higher authorities and informed the Inspector of Police, Grand Bazar Circle Police Station, P.W. 18 over the phone. P.W. 17 proceeded to the scene of occurrence along with P.W. 16 and a headconstable at 8 A.M. P.W. 18 received the telephonic information about this case at 7.30 A.M. on 5th July, 1977 from P.W. 17 and he also reached the scene of the occurrence at 8 A.M. on that day. He arrested the accused at 10.30 A.M. on 5th July, 1977 at his house in Maduvapet and found him to be in possession of the wooden, frame M.O. 1. He held inquest over the body of the deceased Subramaniam between 11.30 and 1.30. p.m. on 5th July, 1977 and examined P.Ws. 1 to 4 during the inquest. Subsequently he sent the body for autopsy. 8. Dr. He held inquest over the body of the deceased Subramaniam between 11.30 and 1.30. p.m. on 5th July, 1977 and examined P.Ws. 1 to 4 during the inquest. Subsequently he sent the body for autopsy. 8. Dr. Dumont P.W. 11, the Assistant Surgeon, Government General Hospital, Pondicherry, conducted the autopsy on the body of the deceased Subramaniam at 3.10 p.m. on 5th July 1977 and found on him on external injury 1½“x 1½” on the right parietal region. On dissection she found extradural haemorehage on the right side and sub-dural clot on the leftside, as well as alinear fracture on right parietal bone. She is of the opinion that the injury is sufficient in the ordinary course of nature to cause death and that the deceased would appear to have died of the head injury, the fracture of the right parietal bone and the laceration of the brain. Exhibit P. 6 is the post-mortem certificate. 9. P.W. 18 examined some witnesses and filed the charge-sheet against the accused on 30th July, 1977. 10. When examined about the circumstances appearing in the evidence, the accused admitted the quarrel between P.W. 8 and P.W. 12 early in the morning of 3rd July, 1977 due to grazing of the cattle of P.W. 8, but, however, stated that he has no personal knowledge about the same. He admitted the prior incident the quarrel between P.W. 8 and P.W. 12 and the Sub-Inspector P.W. 16 warning both of them after sending them to the hospital. He denied having beaten the deceased or having had the wooden frame M.O. 1., but admitted that the deceased had died in the hospital and that he was arrested by P.W. 18. He admitted the prior incident the quarrel between P.W. 8 and P.W. 12 and the Sub-Inspector P.W. 16 warning both of them after sending them to the hospital. He denied having beaten the deceased or having had the wooden frame M.O. 1., but admitted that the deceased had died in the hospital and that he was arrested by P.W. 18. He stated that when he was lying in his house at 6.30 a.m. on the date of the occurrence, he heard a noise and came out and saw P.W. 3 running with a stick, that P.W. 1 had a stick and he slapped P.W. 12 asking him why he beat his brother P.W.3, that one Lakshmanan came running and beat P.W. 12 and he asked Lakshmanan about why he was beating P.W. 12, that thereupon Lakshmanan fisted him on his eyelid, that the deceased Subramaniam beat P.W. 12 with a cart peg and caused a bleeding injury, that he took P.W. 12 to the police station and found the deceased P.W. 1 and P.W. 4 at that place, that P.W. 16 sent him to the hospital and that P.W. 16 came along with P.Ws 1, 4 and Lakshmanan bringing a cart peg and wooden frame at 8 a.m. on 5th July, 1977. No defence witnesses has been examined. 11. The accused has admitted the incident that took place early in the morning of 3rd July, 1977 between P.W. 8, the father of P.W.3 and P.W. 6, and his own brother P.W. 12, though he has denied having personal knowledge about the same. P.Ws. 8 and 12 have deposed about this incident. It may be stated that P.W. 12 has after a certain stage turned hostile to the prosecution. The accused has also admitted the prior incident leading to P.Ws. 8 and 12 sustaining some injury and having been sent to the hospital by P.W. 16 and about P.W. 16 warning P.W.s. 8 and 12 after the report Exhibit P. 7 had been given about that incident at the police station. P.Ws. 3, 6, 8 and 12 have deposed about this prior incident. P.Ws. 1,2, 5 and 7 have deposed about the actual occurrence in this case. 12. P.Ws. 3, 6, 8 and 12 have deposed about this prior incident. P.Ws. 1,2, 5 and 7 have deposed about the actual occurrence in this case. 12. The learned II Additional Sessions Judge, Pondicherry, accepted the evidence of these witnesses regarding the incident which had taken place early in the morning on 3rd July, 1977, and the incident which had taken place about 1½ hours later on that day and about the actual occurrence in this case, and he disbelieved the statement of the accused that the deceased also beat P.W. 12 with a cart peg as having no basis at all and he found that it is the accused who has caused the fatal injury on the deceased Subramaniam, while aiming a blow on P.W. 3 whom he was chasing. However, he held that the offence of murder punishable under section 302, Indian Penal Code, had not been made out by the prosecution and found that the accused is guilty of an offence punishable under section 325, Indian Penal Code, and he convicted him. and sentenced him to undergo rigorous imprisonment for six months, observing in his judgment that the deceased Subramaniam had received only one blow which has proved fatal, that it is clear that the accused had no intention to cause the death of the deceased or P.W. 3, that the learned Public Prosecutor before him also conceded that no offence punishable under section 302, Indian Penal Code, has been made out and that the wooden frame M.O. 1 would be a dangerous weapon if used for aggressive purposes. R.Shanmugham, the learned Counsel for the accused has not been able to point out anything in the evidence of P.Ws. 1,2, 5 and 7 which will discredit their evidence regarding the actual occurrence in this case. Their evidence coupled with the earliest report Exhibit P. 1 given by P.W. 1 establishes that the accused caused the fatal injury on the head of the deceased, by hitting him with a wooden frame, while chasing P.W. 3 by mistaking the deceased to be P.W. 3, and that after inflicting the fatal blow the accused himself got stunned and stood there for some time and he left that place only after seeing P.W. 1 proceeding towards his injured brother from the Mariamman temple from where he witnessed the occurrence. There is therefore no reason, whatsoever to disagree with the finding of the learned II Additional Sessions Judge that it is the accused who caused the fatal injury on the head of the deceased. 13. As stated earlier, the evidence of the doctor P.W. 11 who conducted autopsy on the body of the deceased is that the external head injury which has resulted in a fracture on the right parietal bone and laceration in the brain is sufficient in the ordinary course of nature to cause the death. Section 299, Indian Penal Code, defines culpable homicide. Section. 300, Indian Penal Code, lays down that except in the cases excepted therein culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or secondly if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or, thirdly if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or fourthly if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. If the injury had been caused to P.W. 3, the offence would amount to murder, for thirdly of section 300, Indian Penal Code, would be attracted in this case where the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. Section 301, Indian Penal Code, lays down that if a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause. In view of section 301, Indian Penal Code, the accused would still be guilty of murder, even though he did not intend to cause the injury to the deceased, but had intended to cause the injury only on P.W. 3, but had actually caused the injury on the deceased, under the mistaken belief that the deceased is P.W. 3. In these circumstances, it is difficult to understand how the learned Public Prosecutor before the learned II Additional Sessions Judge, Pondicherry, conceded that no offence under section 302, Indian Penal Code was made out and how the learned II Additional Sessions Judge accepted that concession and found that the accused was not guilty of an offence punishable under section 302, Indian Penal Code, but that the accused has committed an offence punishable only under section 325, Indian Penal Code, I am of the opinion that the learned II Additional Sessions Judge has erred in law in holding that the prosecution has failed to make out a case of murder against the accused. However, since the state has not filed any appeal against the acquittal of the accused of the offence of murder, the matter has to be left where it stands. I do not find any reason whatsoever to interfere with the finding that the accused is guilty of an offence punishable under section 325, Indian Penal Code, or with the sentence of Rigorous imprisonment for six months awarded to him for that offence. The Criminal Appeal fails an d is dismissed. Appeal dismissed.