Judgment : SWAMIDURAI, J. ( 1 ) ACCUSED 1 and 5 in S. C. No. 38 of 1987 on the file of the learned Sessions Judge, East Thanjavur at Nagapattinam are the appellants. There were five accused in this case originally. Accused 2 to 4 were acquitted by the learned Sessions Judge. The first accused was convicted under Section 304 Part 11 of the Indian Penal Code and sentenced to undergo R. I. for six years. The fifth accused was convicted and sentenced under Section 323 of the Indian Penal Code to undergo R. I. for six months. ( 2 ) THE case of the prosecution is as follows: On 29. 9. 1 986 at 7 a. m. , there was an oral altercation between the accused 1 to 5 and the deceased Rangaswamy at Moongilthottam Manmathan Koil Street opposite to the house of the deceased in connection with thorny fence and thereafter the accused formed themselves into unlawful assembly with intention to cause the death of the deceased Rangasamy came and created rioting possessing each Casuarinas stick and in the course of the same transaction, the first accused hit Rangaswamy, the deceased with the Casuarina stick on his head and Rangaswamy was taken to Thanjavur Medical College Hospital for treatment and he died there on 3. 10. 1986. The fifth accused was charged for an offence under Sections 34 and 302 of the Indian Penal Code along with the first accused and the accused, 2, 3 and 4 beat Ulaganathan, P. W. 1, with a Casuarinas stick and caused injuries on him. So the first accused was charged for an offence punishable under Sections 148 and 302 of the Indian Penal Code. Accused 2 to 5 were charged for an offence punishable under Sections 148, 302 and 149 of the Indian Penal Code. Accused 2, 3 and 4 were charged for an offence punishable under Section 323 of the Indian Penal Code. P. Ws. 1 to 2 were examined on the side of the prosecution and Ex. P. 1 to were marked and M. Os. 1 and 2 were marked. Accused have marked Ex. D-1 on their side. Accused 2, 3 and 4 were charged for an offence punishable under Section 323 of the Indian Penal Code. P. Ws. 1 to 2 were examined on the side of the prosecution and Ex. P. 1 to were marked and M. Os. 1 and 2 were marked. Accused have marked Ex. D-1 on their side. ( 3 ) ON a careful scrutiny of the oral and documentary evidence, the learned Sessions Judge found that the accused 2, 3 and 4 had not committed any offence under Section 324 of the Indian Penal Code and so the trial Court acquitted them. The deceased Rangaswamy is the elder sisters husband of P. W. 1 and the deceased was living in the house of P. W. 1. Accused 2 to 5 were residing on the northern side of the house of P.W. 1 and the accused 2 to 5 are brothers and the first accused is the cousin of accused 2 to 4. There was a fence in between the house of P. W. 1 and the house of accused 2 to 5 and on month prior to the occurrence the fifth accused shifted the fence towards the house of P. W. 1 and the Bamboo tree in the house of P. W. 1 was leaning towards the house of the fifth accused. The fifth accused asked P. W. 1 and the deceased to cut away the same and since they refused to do, he said he would cutaway the same. In respect of this there was a wordy quarrel between P. W. 1 and the deceased and also the accused. The occurrence had taken place at 7 a. m. , on 29. 9. 1986. The fifth accused told the deceased that the deceased should cut away the leaning Bamboo tree, otherwise he would cut and throw it away for which the deceased replied that he would not cut away and the fifth accused should not also do that. On hearing this, accused 1 to 4 came and joined with the fifth accused and they abused the deceased. The deceased also in turn abused them. The first accused got angry and he took out a firewood from the firewood depot belonging to P. W. 6 and beat on the head of the deceased only once. Then blood came out of the head profusely. The deceased also in turn abused them. The first accused got angry and he took out a firewood from the firewood depot belonging to P. W. 6 and beat on the head of the deceased only once. Then blood came out of the head profusely. The fifth accused took a firewood and beat the deceased on his right shoulder and left waist. To prevent this, P. W. 1 came there. Accused 2, 3 and 4 each took a firewood and beat P. W. 1 on his back, left shoulder, right elbow and left hand. Similarly the third accused also beat P. W. 1 indiscriminately and P. W. 1 beat the first accused on his head and the fifth accused on his hand. As a result of which accused 1 and 5 sustained injuries. P. W. 1, P. W. 4, P. W. 2 (son of the deceased) P. W. 5 (wife of the deceased) and P. W. 3 working in the firewood depot made out a cry and the accused dropped the firewood on the spot and ran away. The firewood used by them are M. O. 1 series. The prosecution has explained away the injuries found on the accused 1 and 5 by stating that while the third accused was beating P. W. 1, accused 1 and 5 got injuries by slip. This is evident from the testimony of P. Ws. 2 to 5. P. Ws. I to 5 are the eye witnesses according to the prosecution, P. W. 6s evidence is that at about 11 a. m. , after the occurrence on 29. 9. 1986, the head constable of Myladuthurai Police Station came there and prepared an observation mahazar Ex. P-2 and he seized three firewood under the mahazar Ex. P-3, and they are M. O. 1 series and P. W. 6 attested the mahazar. P. W. 1 took Rangaswamy to the Myladuthurai Police Station which is three miles away from place of occurrence, and gave report, Ex. P. 1, regarding the occurrence that took place at 8. 30 a. m. The head constable, P. W. 11, now the Sub Inspector of Police recorded the statement of P. W. 1 and obtained his signature on the same. Then he registered a case under Cr. No. 1416/86 under Sections 147, 326 and 323 of the Indian Penal Code under Ex. P. 11, the First Information Report. 30 a. m. The head constable, P. W. 11, now the Sub Inspector of Police recorded the statement of P. W. 1 and obtained his signature on the same. Then he registered a case under Cr. No. 1416/86 under Sections 147, 326 and 323 of the Indian Penal Code under Ex. P. 11, the First Information Report. He sent the deceased and P. W. 1 with amount for treatment to the Government Hospital, Myladuthurai. He went there and examined the deceased and obtained a statement under Ex. P. 12. this was subsequently marked as dying declaration since Rangaswamy died later on. He prepared the mahazar, Ex. P. 2 and seized M. O. 1 series three firewood under Ex. P. 3 mahazar and Ex. P. 13 rough sketch prepared by him. Then he examined P. Ws 2 to 5. At about 7 p. m. , on the same night, he arrested the accused 2, 3 and 4 and remanded them to judicial custody. On 29. 9. 1986 at 8 a. m. , accused 1 and 5 appeared before (he Police and gave a report, Ex: P. 14. Since their report Ex. P. 14, did not disclose a cognizable offence, a case was not registered immediately and Ex. P. 14 was treated as a petition and this petition was also enquired along with the First Information Report in Cr. No. 1416/86. Accused 1 and 5 were sent to the Government Hospital with a memo for treatment, by the Police. The report Ex. P. 14, given by the first accused was found to be not true and so it was closed. On 3. 10. 1986, a memo was received from the Government Medical College Hospital, Thanjavur, to the effect that the inpatient Rangaswamy died at about 10 p. m. It is under Ex. P. 15. Then the case was changed into one under Section 302 of the Indian Penal Code and express report under Ex. P. 16 was sent to the higher officials and the Court. P. W. 12, Sub Inspector of Police, law and Order, took up the investigation and he verified the statement recorded by P. W. 11 and he too further examined those witnesses. P. 16 was sent to the higher officials and the Court. P. W. 12, Sub Inspector of Police, law and Order, took up the investigation and he verified the statement recorded by P. W. 11 and he too further examined those witnesses. P. W. 7, the doctor in the Government Hospital, Myladuthurai, examined Rangaswamy and P. W. 1 when produced with a memo by the Police and he also examined accused 1 and 5 for the injuries sustained by them and issued wound certificates. P. W. 7 examined the deceased at 8. 30 a. m. , and he was informed by the deceased that he was attacked with Casuarinas stick, According to P. W. 7, the deceased was conscious. P. W. 7 noted three injuries on the deceased and after giving him first aid, he recommended the deceased to be treated by Thanjavur Medical College Hospital. Ex. P. 14 is the wound certificate regarding the deceased given, by P. W. 7 and according to him the first injury is grievous in nature and the other injuries are simple in nature. At about 9 a. m. , on the same day, P. W. 7 head constable of Myladuthurai Police Station came there and prepared an observation mahazar Ex. P-2 and he seized three firewood under the mahazar Ex. P-3, and they are M. O. 1 series and P. W. 6 attested the mahazar. P. W. 1 took Rangaswamy to the Myladuthurai Police Station which is three miles away from place of occurrence, and gave report, Ex. P. 1, regarding the occurrence that took place at 8. 30 a. m. The head constable, P. W. 11, now the Sub Inspector of Police recorded the statement of P. W. 1 and obtained his signature on the same. Then he registered a case under Cr. No. 1416/86 under Sections 147, 326 and 323 of the Indian Penal Code under Ex. P. 11, the First Information Report. He sent the deceased and P. W. 1 with amount for treatment to the Government Hospital, Myladuthurai. He went there and examined the deceased and obtained a statement under Ex. P. 12. this was subsequently marked as dying declaration since Rangaswamy died later on. He prepared the mahazar, Ex. P. 2 and seized M. O. 1 series three firewood under Ex. P. 3 mahazar and Ex. P. 13 rough sketch prepared by him. He went there and examined the deceased and obtained a statement under Ex. P. 12. this was subsequently marked as dying declaration since Rangaswamy died later on. He prepared the mahazar, Ex. P. 2 and seized M. O. 1 series three firewood under Ex. P. 3 mahazar and Ex. P. 13 rough sketch prepared by him. Then he examined P. Ws 2 to 5. At about 7 p. m. , on the same night, he arrested the accused 2, 3 and 4 and remanded them to judicial custody. On 29. 9. 1986 at 8 a. m. , accused 1 and 5 appeared before (he Police and gave a report, Ex: P. 14. Since their report Ex. P. 14, did not disclose a cognizable offence, a case was not registered immediately and Ex. P. 14 was treated as a petition and this petition was also enquired along with the First Information Report in Cr. No. 1416/86. Accused 1 and 5 were sent to the Government Hospital with a memo for treatment, by the Police. The report Ex. P. 14, given by the first accused was found to be not true and so it was closed. On 3. 10. 1986, a memo was received from the Government Medical College Hospital, Thanjavur, to the effect that the inpatient Rangaswamy died at about 10 p. m. It is under Ex. P. 15. Then the case was changed into one under Section 302 of the Indian Penal Code and express report under Ex. P. 16 was sent to the higher officials and the Court. P. W. 12, Sub Inspector of Police, law and Order, took up the investigation and he verified the statement recorded by P. W. 11 and he too further examined those witnesses. P. W. 7, the doctor in the Government Hospital, Myladuthurai, examined Rangaswamy and P. W. 1 when produced with a memo by the Police and he also examined accused 1 and 5 for the injuries sustained by them and issued wound certificates. P. W. 7 examined the deceased at 8. 30 a. m. , and he was informed by the deceased that he was attacked with Casuarinas stick, According to P. W. 7, the deceased was conscious. P. W. 7 noted three injuries on the deceased and after giving him first aid, he recommended the deceased to be treated by Thanjavur Medical College Hospital. Ex. 30 a. m. , and he was informed by the deceased that he was attacked with Casuarinas stick, According to P. W. 7, the deceased was conscious. P. W. 7 noted three injuries on the deceased and after giving him first aid, he recommended the deceased to be treated by Thanjavur Medical College Hospital. Ex. P. 14 is the wound certificate regarding the deceased given, by P. W. 7 and according to him the first injury is grievous in nature and the other injuries are simple in nature. At about 9 a. m. , on the same day, P. W. 7 examined P. W. 1 and P. W. 7 says that P. W. 1 told him that he was attacked with a Casuarinas stick. Two injuries are found on him and Ex. P. 5 is the wound certificate for P. W. 1. At 8. 20 a. m. on the same day, P. W. 7 examined the first accused and found three injuries on him and issued wound certificate under Ex. P. 6. P. W. 7 examined A-5 also and he found two injuries on him and issued Ex. P. 7 wound certificate. Rangaswamy was admitted as an inpatient in the Government Medical College Hospital, Thanjavur, at 12. 30 p. m. , on 29. 9. 86 and in spite of the treatment, Rangaswamy died at 7. 45 p. m. on 3. 10. 1986. A memo was given by P. W. 8 to the Police. The Inspector of Police conducted inquest and his report is Ex. P. 17. The inspector office examined P. Ws 1, 3 and 4 and he examined P. W. 5 also. P. W. 9, Dr. Gopal-krishna Reddy conducted postmortem and he found three injuries on the deceased. The third injury on the head of the deceased is grievous in nature, according to P. W. 9. Ex. P. 9 is the post-mortem certificate and injury No. 3 according to him is sufficient to cause death in the ordinary course of nature. P. W. 12, the Inspector of Police arrested accused 1 to 5 on 6. 10. 1986 at 7. 30 p. m. , and remanded them to judicial custody. After completing the investigation, charge sheet was filed against the accused on 22. 2. 1987 in the Court. P. W. 12, the Inspector of Police arrested accused 1 to 5 on 6. 10. 1986 at 7. 30 p. m. , and remanded them to judicial custody. After completing the investigation, charge sheet was filed against the accused on 22. 2. 1987 in the Court. The accused when questioned under Section 313 of the Criminal Procedure Code with regard to the incriminating circumstances found against them, they pleaded not guilty and denied the charge. Accused 2, 3 and 4 placed that they were not at all present at the place of occurrence. According to the first accused, it was P. W. 1, who hit the first accused on his head with the Casuarina stick, that the deceased pushed the first accused to the ground. P. W. 1 beat the first accused on his left elbow. 5th accused beat P. W. 1 with a firewood and the accused 1 and 5 beat P. W. 1 indiscriminately and while doing so one of the beatings fell on Rangaswamy and he sustained injury as a result of it and the evidence of the first accused is that he did not beat the deceased and that P. Ws. 1 and 5 are deposing falsely. Further, according to them, the three accused did not beat P. W. 1 and the beating of P. W. 1 fell on the accused I and 5 by slip and thereby accused 1 and 5 sustained injuries. ( 4 ) THE learned Counsel for the appellants accused 1 and 5 contended that even assuming without admitting that the first accused had beat the deceased with Casuarina stick on his head and as a result of which the deceased died subsequently, the offence would not come within the purview of Section 304 Part II of the Indian Penal Code. The learned Counsel also contended that there was previous enmity between the accused on the one side and the deceased and P. W. 1 on the other side and so this case has been foisted against them. After going through the oral and document by evidence of the prosecution and the judgment of the trial Court, I am unable to accept that the first accused did not beat the deceased on his head, as borne out by the evidence of the prosecution witnesses. After going through the oral and document by evidence of the prosecution and the judgment of the trial Court, I am unable to accept that the first accused did not beat the deceased on his head, as borne out by the evidence of the prosecution witnesses. But the argument of the learned counsel for the appellants was that the offence would not certainly attract Section 304 Part II of the Indian Penal Code and for which he relied upon the following judgments. ( 5 ) IN State of Maharashtra v. Suresh a Division Bench of the Bombay High Court held; that an accused giving only one blow on the head with a stick which was not very heavy and that no blow given to the deceased after he fell down, the accused could be held guilty only under Section 325 and not under Section 302 of the Indian Penal Code. In paragraph 8 of the Judgment, this aspect has been considered which runs as follows"it takes us to consider what offence accused 1 has committed by hitting the deceased Dattaram with a stick on his head and thereby causing his death. There is no evidence either direct or circumstantial to infer that accused 1 entertained an intention to cause the death of Dattaram. The sticks which are produced before the Court and which are alleged to have been used in the crime are not very heavy sticks. Accused 1 gave only one blow on the head of the deceased Dattaram and after he fell down no blow was given by accused 1 to the deceased. From the nature of the weapon i. e. , stick and the single blow given by accused I on the head of Dattaram neither intention to cause death of Dattaram nor knowledge that the injury to be caused thereby would result into, the death can be imputed to accused 1. Therefore, we find that the offence committed by him does not fall within the provisions of Section 302 I. P. C. . Accused I gave a forcible stick blow on the head of Dattaram and thereby accused grievous hurt to him without intending or knowing that thereby he would cause the death of Dattaram and, therefore, the offence would fall squarely under Section 325, I. P. C. and is liable to be convicted for the same". Accused I gave a forcible stick blow on the head of Dattaram and thereby accused grievous hurt to him without intending or knowing that thereby he would cause the death of Dattaram and, therefore, the offence would fall squarely under Section 325, I. P. C. and is liable to be convicted for the same". ( 6 ) IN another case reported in Dhyaneshwar Dagdoba Hivrakar v. Stat of Maharashtra a learned Single Judge of the Bombay High Court has also held that after some quarrel accused giving one blow on head of deceased with small stick weighing only 210 gms. , it could not be said that accused had knowledge that blow by such stick would cause death, conviction under Section 304 Part 2 was set side and accused was convicted under Section 323 of the Indian Penal Code. The learned Judge in paragraph 6 of the judgment has observed as follows: In my judgment, the prosecution has clearly established that the accused gave blow with a stick on the head of the deceased and that blow has resulted in his death. Shri Paranjpe then submits that accepting the entire prosecution case, it would not be possible to record a, finding that the accused had committed an offence under Section 304 Part II of the Penal Code. It was urged by the learned Counsel that the accused had neither the intention nor the knowledge that his act would cause the death of his friend. Shri Parsnips points out that the stick with which the blow was given can hardly be described as a stick as it weighs only 210 grams and with the blow given by the accused it broke into two pieces. It is not in dispute that the stick was grabbed by the accused from the hand of a child who was playing in the compound of the Wada and it would not be improper if it is assumed that the stick must be a very small stick. The prosecution led the evidence of Tai and the witness produced on record Article 4 which is claimed to be a broken portion of the stick. From the evidence on record, it is impossible to hold that the stick used by the accused was a weapon from which a knowledge can be attributed to the accused that the blow by such stick would cause death. From the evidence on record, it is impossible to hold that the stick used by the accused was a weapon from which a knowledge can be attributed to the accused that the blow by such stick would cause death. The fact that the accused and the deceased were friends and were neighbours also cannot be overlooked and taking all these facts into consideration, in my judgment, the offence committed by the accused could not be one under Section 304 Part II of the Penal Code. The offence is clearly one under Section 323 of the Penal Code. Looking to the stick used by the accused and looking to the fact that some quarrel was going on between the two friends: it could be safely held that the accused intended to cause a simple hurt to the deceased. Unfortunately the blow landed on the head and resulted in the death, The trial Judge has recorded a finding that the blow given by the accused was not at all violent and the witnesses nowhere stated that the blow was given with any force. Shri Chopda relied upon the statement of Dr. Kundalkar to the effect that the injury could have been caused by a forcible blow with the stick, Article 4. From this statement it is impossible to conclude that the accused had given a forcible blow. In my judgment the accused had committed an offence of causing simple hurt to the deceased and is liable for conviction under Section 323 of the Penal code. ( 7 ) THE learned Counsel for the appellants also relied upon the decision of the Allahabad High Court reported in Indra Deva v. State. A learned Single Judge of Allahabad High Court has held that the intention to cause death or bodily injury likely to cause death must be proved and that knowledge of grievous injury could be attributed when accused indicted blow of Kudal, i.e. , equipment used for digging, on neck of the deceased and was convicted under Section 326 instead of Section 304-1 of the Indian Penal Code. The learned Judge has discussed the same in paragraphs 11 and 12 of the judgment which are as follows:11. The crucial question for determination is as to what offence has been committed by the appellant. The trial Court has rightly remarked that there was no intention to kill. The learned Judge has discussed the same in paragraphs 11 and 12 of the judgment which are as follows:11. The crucial question for determination is as to what offence has been committed by the appellant. The trial Court has rightly remarked that there was no intention to kill. It, however observed: He fully knew that such an injury could cause the death of Sheo Poojan. Therefore, the knowledge that such an injury, in the ordinary course of nature, would cause the death of Sheo Poojan can be attributed to Indra Deva. I, therefore, hold that Indra Deva had committed an offence punishable under Section 304, Part I of the Penal Code. The learned Counsel for the appellant contended that the provision of Section 304, Part I do not stand attracted. I am inclined to accept the contention for those reasons. Part I applies only in two circumstances: If the act by which the death is caused is done (a) with the intention of causing death, or (b) of causing such bodily injury as is likely to cause death. 12. Even the Court below has remarked that the act was not done with the intention of causing death. Therefore, the first clause referred to above does not apply. For the applicability of the second clause it is in my opinion necessary that bodily injury was intended to be inflicted and the same was sufficient to clause death. If be carefully consider the nature of the injury suffered by Sheo Poojan and keep in mind the weapon of assault we can-legitimately and reasonably infer that this injury was not intended to be caused. It appears that Sheo Poojan moved his head on the left side to avoid the fall of Kudal on head region and, therefore, the blow landed on soft and delicate part Of the body, namely, neck causing that injury. One in standing or silting posture cannot suffer this injury unless he moves his neck towards extreme left, thereby allowing the weapon to fall on that portion of the neck, which was effected. It, therefore, follows that this injury on neck region was not intended to be caused by the appellant. This fact takes the matter out of the ambit of Clause (b) of part I referred to above. It, therefore, follows that this injury on neck region was not intended to be caused by the appellant. This fact takes the matter out of the ambit of Clause (b) of part I referred to above. The trial court has, in my opinion, erred in introducing the word knowledge for the applicability of part I. To my mind clause (1) and clause (iii) of Section 300 of the Penal Code are dealt with in Part I of Section 304 provided it is a case of culpable homicide not amounting to murder. As a matter of fact, the word knowledge appears in Part II, which mentions that if the act is done with the knowledge that it is likely to cause death, he will be punished under Part II. In my view clause second of Section 300 speaks of cases where the offender knows that the bodily injury was likely to cause death. Example (b) given in Section 300 indicates what type of knowledge is required. It can, therefore, be safely concluded that the act was not done with the knowledge as is contemplated even by Part II of Section 304. ( 8 ) THE other argument raised by the learned Counsel for the appellants is that the accused 1 and 5 also sustained injuries in the same transaction and that the prosecution has not explained away the injuries. According to the prosecution, when A3 beat P. W. 1 indiscriminately with Casuarina stick, by slip the attacks fell upon the A-1 and A-5 and A-1 and A-5 sustained injuries. It appears that the first accused gave a report to the Police immediately soon after the occurrence and that petition was closed as the contents are not true, according to the Police. In support of his contention, the learned Counsel relied upon a judgment reported in Slate of Rajasthan v. Mahda in which it has been held that when the prosecution witnesses fail to explain the injuries sustained by the accused in the same incident in which the offence under Sections 302 and 326 of the Indian Penal Code are alleged to have been committed by them. Their Lordships of the Supreme Court held that the testimony of the prosecution witnesses would give an impression that they are suppressing some part of incident and that the accused are entitled to the benefit of an entirely in agreement with the judgment of the Supreme Court and also bound to follow the same. But in this case, the prosecution has given some explanation regarding the injuries found on the first accused and fifth accused and according to my view that explanation appears to be true and possible and therefore, I am unable to accept the contention of the learned Counsel for the appellants that the prosecution witnesses failed to explain the injuries found on the accused 1 and 5. In view of the above discussion, I am of the view that the first accused has not committed an offence under Section 304 Part II of the Indian Penal Code but he has committed an offence under Section 325 of the Indian Penal Code. Accordingly, I set aside the conviction and sentence under Section 304 Part II of the Indian Penal Code but I convict and sentence him under Section 325 of the Indian Penal Code and sentence him to a period of 1-1/2 years. The first accused is entitled to the benefits of the three G. Os. , Viz. , (1) G. O. Ms. No. 781, Home (PR-C) Department, dated 11. 4. 1990, (2) G. O. Ms. No. 180, Home (Prisons-TV) Department, dated 28. 1. 1989 and (3) G. O. Ms. No. 279, Home (Prison-C) Department, dated 23. 2. 1992, and he need not surrender before the Jail authorities. The conviction, so far as the fifth accused is concerned, is confirmed since there is no material to interfere with the findings of the trial Court. The fifth accused is also entitled to benefits of the above said G. Os. and he need not surrender before the Jail authorities. With this modification in the sentence, this Criminal Appeal is dismissed. Appeal dismissed.