Judgment : MARUTHAMUTHU, J. ( 1 ) THIS appeal arises from the judgment of the Additional Sessions Judge, North arcot at Vellore in Sessions Case No. 11 of 1985 dated 26. 4. 1985 convicting and sentencing the appellant to undergo imprisonment for life under Section 302 I. P. C. and to rigorous imprisonment for one year under each of the four counts under Sec. 324 I. P. C. , all the sentences being ordered to run concurrently. The charges against the appellant are that on 13. 9. 1984 at about 7. 00 p. m. at Melapulampudur Colony, within the jurisdiction of Kaverinakkam Police Station, he committed the murder of Kadirvelu by attacking him with a stick and caused hurt to Yasodha, wife of the deceased Radirvelu, arid to Danasekaran and Thiagarajan, sons and Paripooranam, daughter of the deceased with the same stick. As such, the appellant remains charged under Sections 302 and 324 (four counts) IPC. The appellant has pleaded not guilty to the charges. ( 2 ) THE prosecution case briefly stated is this: (i) Subramani is the father of the appellant. Yasodha (P. W. 2) is the sister of the appellant. The deceased Kadirvelu is her husband. Denasekaran (P. W. 1) and Thiagarajan (P. W. 4) are the sons, and Paripooranam (P. W. 3) is the daughter of P. W. 2 and the deceased Kadirvelu. Kadirvelu is related as maternal uncle to the appellant. Kadirvelu owned 2. 16 acres of land which he left in the management of Subramani and went to Ceylon. In 1983, Kadirvelu returned from Ceylon with his family and when he wanted to get the land from Subramani, Kadirvelu had to give 16 cents of land to Subramani though Subramani wanted more. Thereafter, Selvi, daughter of Subramani (sister of the appellant) dumped cow-dung manure on the land of the deceased Kadirvelu which was objected to by P. W. 3. Dayalan, brother of the appellant had beat P. W. 3. On 22. 8. 1984, P. W. 3 gave a complaint against Dayalan in Kaveripakkam Police Station. When it was enquired by the Sub-Inspector of Police (P. W. 14), it was compromised as per the endorsement (Ex. P-2) on the mediation of Parasurama Manthiri (P. W. 7 ). (ii) On 13. 9. 1984, at about 7. On 22. 8. 1984, P. W. 3 gave a complaint against Dayalan in Kaveripakkam Police Station. When it was enquired by the Sub-Inspector of Police (P. W. 14), it was compromised as per the endorsement (Ex. P-2) on the mediation of Parasurama Manthiri (P. W. 7 ). (ii) On 13. 9. 1984, at about 7. 00 p. m. when a chimney lamp (M. O. 14) was burning in the pial of the house of Kadirvelu he and P. W. 1 were sitting on a cot (M. O. 15) and were taking meals using the vessels (M. Os. 10 to 12 ). The appellant came there with a stick and beat Kadirvelu with that stick on his head. Kadirvelu fell down with bleeding injury. The appellant also beat P. Ws. 1 to 4 when they intervened and caused injuries on them P. Ws. 1 to 4 raised an alarm. Kannan (P. W. 5) and Kuppusami (P. W. 6) and some others rushed to that place and saw Kadirvelu and P. Ws. 1 to 4 with injuries. Kamalakannan took the injured in a cart to Panapakkam Government Hospital and from there to Walajah Government Hospital. At 10. 10 p. m. Dr. Sulochana (P. W. 12) examined Kadirvelu for the injury said to have been caused with a stick and found on him a lacerated wound 6 c. m. x 1 c. m. x 0. 5 c. m. over the middle of the scalp with fresh blood clots allover the head and face. Kadirvelu was brought dead to the hospital. P. W. 12 issued the wound certificate (Ex. P-14 ). (iii) Between 10. 20 p. m. and 10. 55 p. m. P. W. I2examined P. Ws. 2, 3,1 and4for the injuries said to have been caused on them by a stick The following two injuries were found on P. W. 2: (1) Lacerated wound 0. 5 cm. x 0. 5 cm. x 0. 5 cm. over the base of the right middle finger with fresh clot. (2) Contusion 5 cm. x 5 cm. over the middle of the right side of the forearm with reddish discoloration of skin. Ex. P-15 is the wound certificate issued forp. W. 2. P. W. 12 found on P. W. 3, a contusion 3 cm. x 3 cm. over the middle of left forearm with lacerated wound 0. 25 cm. x 2. 5 cm. x 5 cm. over the middle of the right side of the forearm with reddish discoloration of skin. Ex. P-15 is the wound certificate issued forp. W. 2. P. W. 12 found on P. W. 3, a contusion 3 cm. x 3 cm. over the middle of left forearm with lacerated wound 0. 25 cm. x 2. 5 cm. at its middle with fresh clot. Ex. P16 is the wound certificate given for P. W. 3. P. W. 12 found on P. W. 1 the following injuries: (1) Lacerated wound 6 cm. x 1 cm. x 1cm. over the middle of the left side of the scalp with fresh clot. (2) Lacerated wound 0. 55 cm. x 0. 5 cm. x 0. 5 cm. at the middle of the right side of the scalp with fresh clot. Clinically no evidence of fracture. (3) Concussion 3 cm. x 3 cm. over the left hand with reddish discolorations of skin. Ex. P-17 is the wound certificate issued to P. W. 1. P. W. 12 examined P. W. 4 and found the following injuries on hill: (1) Lacerated wound 4 cm. x 0. 5 cm. x 0. 5 cm. over the middle of the scalp with fresh clot. (2) Contusion 2 cm. x 2 cm. over the left ankle with reddish discolorations of skin. Ex. P18 is the wound certificate issued by P. W. 12 to P. W. 4. P. W. 12 was of the opinion that the injuries on P. Ws. 1 to 4 might have been caused by a stick. She sent intimation of death (Ex. poll) with regard lo Kadirvelu and intimation of accidents (Ex. P-12) with regard to P. Ws. 1 to 4 to Walajah Police Station. (iv) At 1. 45 a. m. on 14. 9. 1984, the Head Constable (P. W. 11) attached to Walajah Police Station proceeded to Government Hospital, Walajah, examined P. W. 1 and got a statement (Ex. P 1) from P. W. 1. Since the occurrence has taken place within the jurisdiction of Kaveripakkam Police Station, the complaint was transferred to that police station. Ramalaingam (P. W. 15), Sub-Inspector of Police, Kavcripakkam, registered a case in Crime No. 196 of 1984 and prepared the printed First Information Report (Ex. P. 23) and express reports and sent copies to the higher authorities. Since the occurrence has taken place within the jurisdiction of Kaveripakkam Police Station, the complaint was transferred to that police station. Ramalaingam (P. W. 15), Sub-Inspector of Police, Kavcripakkam, registered a case in Crime No. 196 of 1984 and prepared the printed First Information Report (Ex. P. 23) and express reports and sent copies to the higher authorities. P. W. 15 arrested the appellant in his house in the presence of Jothi (P. W. 8), the appellant gave a statement to P. W. 15 and produced the stick (M. O. 2) which was lying in the thorny bush near the cattle-shed and house of the deceased. P. W. 15 recovered M. O. 2 under a Mahazar (Ex. P-3 ). On 14. 9. 1984 at 7. 00 A. M. Kumar, Inspector of Police (P. W. 18) took up investigation. He held inquest on the dead body of Kadirvelu in the Government Hospital, Walajah between 9. 30 A. M. and 11. 30 A. M. and prepared the inquest report (Ex. P-26 ). He examined P. Ws. 1 to 5. He sent a requisition (Ex. P-24) to the Medical Officer, Government Hospital, Walajah through P. W. 17 for conducting autopsy. (v.) At the Government Hospital, Walajah Dr. Purushoutam Vijayakumar (P. W. 16) conducted postmortem on the, dead body of Kadirvelu and found the following external and ante mortem injuries: (1) A laceration 6 cm. x 1 cm. on the interparietal region wound clean. No sand or stone particles seen in it. (2) Blood clots (blackish and dry) present in both ears and noses. On internal examination, he noticed the following (1) A hemorrhagic contusion of the scalp with sub aponeurotio hemorrhage extending over the right parietal temporal and occipital regionblackish red in colour. The right temporal is muscle has hemorrhage in its substance. (2) Opening of skull-Epidural hemorrhage 30 cc. on the right side of the membranes 100 cc of dark red fluid blood in subdural hemorrhage, (3) Middle meningeal artery; Fissured fracture in the coronal plane extending from the mid line on to the right parietal bone with two branchings and then on to the sojamous part of temporal bone (right) on to the base of right middle cranial fossa and ending near the right side of the foramen magnum. Length of fracture is 20 cms. The right parietal temporal and occipital roots were contused with intra cerebral hemorrhage. Length of fracture is 20 cms. The right parietal temporal and occipital roots were contused with intra cerebral hemorrhage. P. W. 16 opined that the deceased would appear to have died of neurogenic shock due to laceration and contusion of the right cerebral hemisphere with depression of vital centres of the brain due to raised intra cranial tension due to epidural and subdural hemorrhage due to rupture of right middle meningeal artery, fracture of the vault and base of right midcranium due to a blunt object. Ex. P25 is the postmortem certificate issued by P. W. 16. He was of the opinion that the injury on the head of the deceased might have been caused by a stick. (vi) P. W. l7removed the dhoti (M. 0. 9) and banian (M. O. 8), half shirt (M. 0. 19), full hand shirt (M. O. 20) and gunny bag (M. O. 21), lungi (M. O. 22) and waist-chord (M. O. 23) from the dead body of Kadirvelu after postmortem examination and handed them over at the police station. He handed over the corpse to the relations of the deceased. (vii) On the same day, P. W. 18 recovered the blue colour lungj (M. O. 1) from P. W. 1 under a mahazar (Ex. P-4 ). He also recovered a red colour saree (M. O. 3) and a blue colour jacket (M. O. 4) from P. W. 2 under a mahazar (Ex. P5), a white saree (M. O. 5) and a green blouse (M. O. 6) from P. W. 3 under a mahazar (Ex. P-6), a half shirt (M. O. 7) and a blue trouser (M. O. 8) from P. W. 4 under a mahazar (Ex. P-7) in the presence of Subramani (P. W. 9 ). He inspected the scene of occurrence in the presence of P. W. 8. P. W. 18 examined P. W. 16, Dr. Purushotham Vijayakumar with reference to M. O. 2. He inspected the scene of occurrence in the presence of Narayanasami (P. W. 10) and another and prepared an observation mahazar (Ex. P-8) and a rough sketch of the scene (Ex. p. 27 ). He recovered M. Os. 10 to 15 under a mahazar (Ex. P-9) and M. Os. l6and 17 under a mllhazar (Ex. P-8 ). On 17. 9. 1984, P. W. 18 gave a requisition (Ex. P-8) and a rough sketch of the scene (Ex. p. 27 ). He recovered M. Os. 10 to 15 under a mahazar (Ex. P-9) and M. Os. l6and 17 under a mllhazar (Ex. P-8 ). On 17. 9. 1984, P. W. 18 gave a requisition (Ex. P-19) to the Judicial Second Class Magistrates Court, Walajah to send M. Os. 1 to 9 and 13 to 22 for chemical analysis. Accordingly, the report of the 85. Chemical Examiner (Ex. P-21) and the report of the Serologist (Ex. P-22) were received in that Court. P. W. 18 completed the investigation and filed the final report on 10. 11. 1984. ( 3 ) WHEN the appellant was examined under Section 313 Cr. P. C. with reference to the incriminating circumstances appearing against him in the evidence, he stated that there was dispute over the land between him and the deceased Kadirvelu and that at about 7 P. M. on the date of occurrence, when he was proceeding towards his cattle-shed, the deceased Kadirvelu abused him in vulgar language, that the appellant suggested that the deceased Kadirvelu should safeguard his respect, that the deceased retorted by saying that the appellant deserved no respect and that by so saying the deceased took a velikathan kombu and beat the appellant. The appellant stated that he snatched that stick from the deceased and wielded it as the inmates in the house of the deceased came with iron pipe, knife and stick and that thereafter the appellant ran away. No witness was examined on his side. ( 4 ) THE learned Sessions Judge, on a meticulous consideration of the evidence, both oral and documentary, found the case of the prosecution as true and found the charges proved and rejected the plea of the appellant. Accordingly, he dealt with the appellant as stated earlier. The appellant now challenges the said verdict of the Sessions Judge in the present appeal. ( 5 ) IT may be stated even at the outset that this is a case in which the prosecution has adduced abundant evidence to prove the fact that it is the appellant who had caused the death of Kadirvelu by hitting him with a stick on 13. 9. 1984. P. Ws. ( 5 ) IT may be stated even at the outset that this is a case in which the prosecution has adduced abundant evidence to prove the fact that it is the appellant who had caused the death of Kadirvelu by hitting him with a stick on 13. 9. 1984. P. Ws. 1 to 4 herein are ocular witnesses and it is not disputed on the side of the appellant that they saw the occurrence in which the deceased Kadirvelu was attacked. Evidently, all these four Witnesses have sustained injuries on some parts or other of their persons. The evidence of Dr. Sulochana (P. W. 12) and the wound certificates (Ex. P-14 to. P17) issued by her may be considered here. Those witnesses would not only testify to the injuries inflicted on them, but also the injuries caused to the deceased Kadirvelu. Their uniform evidence is that the appellant beat the deceased Kadirvelu on his head and that while P. Ws. 1 to4 hap intervened, they were also beaten by the appellant with the same stick. Because P. W. 2 is the wife of the deceased, and P. Ws. 1 and 4 are the sons, and P. W. 3 is the daughter of the deceased, and they are all members of the family of the deceased, it cannot be contended that the evidence of those witnesses should not be relied upon. As already pointed out, we find that P. Ws. 1 to 4 have also sustained injuries in the course of the same occurrence in which the deceased was attacked by the appellant and, therefore, there is no question of rejecting their testimony on the ground of close relationship and interestedness. A careful reading of the evidence of P. Ws. 1 to 4 makes us believe what the appellant had attacked not only the deceased Kadirvelu, but also P. Ws. 1 to 4. We concur with the finding of the learned Session Judge in this regard. ( 6 ) BUT, when we come to the next question whether the appellant had assaulted the deceased and P. Ws. 1 to 4 with the stick (M. O. 2), there is suspicion. P. W. 1 has stated in Ex. P-I that the appellant brought a velikathan kombu and beat first on the head of the deceased Kadirvelu and on P. Ws. 1 to 4. 1 to 4 with the stick (M. O. 2), there is suspicion. P. W. 1 has stated in Ex. P-I that the appellant brought a velikathan kombu and beat first on the head of the deceased Kadirvelu and on P. Ws. 1 to 4. The same is not the version of P. W. 1 in his evidence. He would seek to depose in his evidence that the appellant beat the deceased and P. Ws. 1 to 4 with the stick (M. O. 2), M. O. 2 is a stick 2 - 4 long with the circumference of 7 -1/2 inches on one side. It is also described as a neatly processed one containing three holes therein. Such description of the stick (M. O. 2) may not possibly tally with velikathan kombu which is mentioned in Ex. P-I by P. W. 1 at the earliest. P. Ws. 1 to 4 seem to introduce M. O. 2 in the place of velikathan kombu with a view to make it appear that the appellant used a well dressed heavy stick to attack the deceased and P. Ws. 1 to 4 ruthlessly. We are unable to accept the latter version of P. W s. 1 to 4 that M. O. 2 is the stick that was used by the appellant at the time of occurrence. It might be that the appellant had used a velika than kombu which is normally found in a fence. In fact, the plea raised by the appellant during his examination under Section 313 Cr. P. C. is that it was only velikathan kombu that was available at the time of occurrence. According to him, even that velikathan kombu was brought by the deceased Kadirvelu and that when he attacked the appellant, the latter snatched that stick from the hands of the deceased and wielded it against the deceased and P. Ws. 1 to 4 who tried to attack the appellant. M. O. 2 also has not been recovered by P. W. 15 by following the procedure under section 27 of the Indian Evidence Act. The appellant is said to have taken out and produced M. O. 2 from the bush near the scene of occurrence stating that it was the stick used by him to attack the deceased. No statement has been recovered by P. W. 15 to show that in pursuance of which M. O. 2 was recovered. The appellant is said to have taken out and produced M. O. 2 from the bush near the scene of occurrence stating that it was the stick used by him to attack the deceased. No statement has been recovered by P. W. 15 to show that in pursuance of which M. O. 2 was recovered. If P. W. 15 would state in his evidence that the appellant produced M. O. 2 stating that it was the weapon used by him to attack the deceased, it is not admissible in evidence. In the circumstances, when there is no proof that M. O. 2 was the stick which was used by the appellant at the time of occurrence, no significance can be attached to the human bloodstains, if any, found on m. O. 2. ( 7 ) HOWEVER, it cannot be gainsaid that the deceased died as a result of the head injury sustained by him due to the beating on his head by the appellant and that P. Ws. 1 to 4 had sustained injuries on their person at the hands of the appellant. P. W. 16 who conducted autopsy on the corpse of the deceased Kadirvelu has stated that the injury on the inner parietal region of the head of the deceased might have been caused by a stick like M. O. 2 and that the deceased would appear to have died of neurogenic shock due to the laceration and contusion on the right cerebral hemisphere with a depression of vital centre of brain and subdural hemorrhage, P. W. 12s opinion that the injuries on P. Ws. 1 to 4 might have been caused by beating with sticks also remains corroborated. Therefore, there is no difficulty at all in holding that it is the appellant who had caused the death of the deceased Kadirvelu and caused the injuries on P. Ws. 1 to 4. ( 8 ) COMING to the nature of the offence committed by the appellant. Mr. N. Doraisamy learned counsel for the appellant argued that this is a case in which the appellant dealt a single blow on the deceased and that too without any premeditation with a stick that was found in the fence and it does not fall within the ambit of the offence punishable under Sec. 302, I. P. C. but that it attracts the ingredients of Section 304 Part II. I. P. C. We heard the submissions of Mr. I. Subramanian, learned Additional Public Prosecutor also in this regard. We are satisfied that the offence committed by the appellant with regard to the deceased Kadirvelu will come under Section 304 Part II, I. P. C. The prosecution has not established that there was dee P-5 eated enmity between the appellant and the deceased so as to provoke the appellant to commit the murder of the deceased Kadirvelu. The evidence shows that there was dispute between Subramani the father of the appellant on one side and the deceased Kadirvelu on the other over a parcel of land which belonged to the deceased and which was in the management of Subramani for some time when Kadirvelu with his family was away in Ceylon and that it was settled between them as the deceased gave up 16 cents of land to Subramani in consideration of his surrendering possession of the land to Kadirvclu. Ex. P.-2 is the compromise, in which but the parties have signed at the police station on 23. 8. 1984. P. W. 7 who has attested Ex. P-2 has spoken to the compromise effected between the parties. P. W. I s evidence is also to the effect that there was no dispute between him and the deceased on the one side and the appellant s party on the other. But still the occurrence seems to have taken place on the fateful day due to some remarks that passed on between the appellant and the deceased Kadirvelu. There is a shed put up by Subramani father of the appellant, and a portion of it is in the occupation of the family of the deceased while the other portion is used by the appellants family as a cattle-shed. It appears that when the appellant had passed towards his cattleshed the deceased Kadirvelu who was sitting outside had passed some remarks against the appellant and that as a result the appellant took out a stick from the nearby fence and had beat the deceased Kadirvelu and P. Ws. 1 to 4. There is evidence of P. W. 8 and P. W. 15 to show that there is a thorny fence in the west of the appellants house. It is. Therefore probable that the appellant drew a stick from that fence and beat the deceased Kadirvelu and P. Ws. 1 to 4. 1 to 4. There is evidence of P. W. 8 and P. W. 15 to show that there is a thorny fence in the west of the appellants house. It is. Therefore probable that the appellant drew a stick from that fence and beat the deceased Kadirvelu and P. Ws. 1 to 4. This fact will remain confirmed by Ex. P-I also which mentions velikathan kombu which means a stick found in a fence. The appellant also does not appear to have had the intention to kill Kadirvelu when he beat him with a stick. In Ex. P I P. W. 1 has not averred that the appellant hit the deceased Kadirvelu stating that he should die. It is only by way of embellishment in his evidence during trial that he would say that the appellant beat Kadirvelu. We need not attach credence to this belated version of P. W. 1 and that too when here are also other circumstances to support the view that the appellant would not have had the intention to cause the death of Kadirvelu. At the most we may hold that the accused must be attributed knowledge that in inflicting the injury on the deceased Kadirvelu the appellant was likely to cause his death and that. therefore it win be culpable homicide punishable under Section 304 Part II. I. P. C. ( 9 ) FOR the reasons stated above we set aside the conviction and the sentence imposed on the appellant under Section 302. I. P. C. but instead, we convict him under Section 304 Part II. I. P. C. and sentence him to rigorous imprisonment for four years for the modified conviction. We confirm the convictions under Section 324 I. P. C. (Four counts) the sentences for which have been ordered to run concurrently by the trial Judge. Subject to the above modifications the appeal will stand dismissed.