Judgment : This is an appeal by the State represented by the learned Public Prosecutor challenging the correctness of the acquittal of the respondent of an offence punishable under Sec.302, Indian Penal Code, recorded in S.C.No.47 of 1985, by the learned Sessions Judge, Kanyakumari at Nagercoil. 2. Prosecution case is as follows: P.W.1 Rajam is the wife of deceased Esravel. Respondent Aruldoss is the younger brother of P.W.1. P.W.2 Anitha, a girl aged about 11 years and P.W.3 George are sister and brother respectively and children of P.W.5 Maria Thangam. All these witnesses are residents of Perumchilambur village. About four years prior to occurrence, respondent was arrested by Forest Officials since he had cut timber in Neduvizai Reserved Forest Area. Deceased Esravel spent his funds and had the respondent released on bail. Again 20 days prior to occurrence, respondent was arrested on the basis of a non-bailable warrant. Deceased went to the rescue of his brother-in-law for a second time and had him released on bail. Towards the expenses incurred by the deceased, respondent owed Rs.40 to him. 3. In this back ground, at or about 5.45 P.M. on 23. 1985, P.W.1 and the deceased were proceeding to the market area in Perumchilambur to make some purchases. Respondent was coming towards them from the opposite direction. Deceased asked the respondent to pay him back Rs.40. Respondent not only refused to return the sum demanded, but also stated that the deceased could do whatever he liked. This resulted in a wordy altercation between the respondent and the deceased. During the course of such altercation, respondent, who was carrying a spade on his shoulder, took it and beat once on the fore-head portion of the deceased resulting in a bleeding injury. On receipt of the........said injury shouting ‘ayyo’, deceased bent down. Again with the spade handle respondent inflicted an injury on the back portion of the forehead of the deceased. Injured Esravel sat down immediately. P.W.1 was in uncontrollable tears. P. Ws.2 to 4 on hearing the screams of P.W.1 arrived at the scene. Meanwhile respondent escaped with his weapon of offence eastwards through the rubber garden. P.W.5 noticed the respondent running away with his spade through the neighbouring garden. He also noticed Esravel with injuries, near whom P.W.1 was present weeping. P.W.1 was in uncontrollable tears. P. Ws.2 to 4 on hearing the screams of P.W.1 arrived at the scene. Meanwhile respondent escaped with his weapon of offence eastwards through the rubber garden. P.W.5 noticed the respondent running away with his spade through the neighbouring garden. He also noticed Esravel with injuries, near whom P.W.1 was present weeping. Similarly, P.W.6 Pushpam had seen the respondent running away from the scene of occurrence with the weapon of offence, while injured Esravel along with his wife P.W.1 continued to stay for some time at the venue of crime. 4. P.W.7 Dennis, taking pity on P.W.1, fetched a taxi bearing registration No. MDS.4519 driven by P.W.8 Krishnamoni, to the scene to help P.W.1 to take her husband to the hospital at Thakkalay. Accordingly, P.W.1 with her injured husband, reached Thakkalay hospital at 8.15 p.m. the same night. 5. P.W.9 Dr.Mohan examined injured Esravel at 8.15 p.m. on 23. 1985 for injuries allegedly sustained by him at 6 p.m. due to an assault with ‘manvetti’. Injured was accompanied by his wife P.W.1 The following injuries were noticed: .(1) A lacerated wound on the centre of the fore-head triangular in shape 1/2“x 1” x 1/4“in size. .(2) A lacerated wound on the back side of scalp 2”x 1“x 1/2” in size. Fresh bleeding was found present. P.W.9 referred the injured victim to Government Headquarters Hospital, Nagercoil for further treatment. Ex.P-2 is the wound certificate. Ex.P-3 is the accident intimation forwarded to Thakkalay Police Station by P.W.9. Injuries noticed on the victim, could have been caused if the metal and stick portions of M.O.I had come into contact with those portions of the head. Injury No.2 was grievous in nature. 5. P.W.14 Chandrasekaran, First Grade Constable, Thakkalay, on receipt of Ex.P-3 made an entry in the General diary of his police station and proceeded to Government Hospital, Thakkalay. By the time, the victim had already been removed to the Government Hospital, Nagercoil, P.W.14 proceeded to the Government Hospital, Nagercoil. He found injured Esravel in the accident ward. He was not in a position to talk. Hence, he obtained a statement from P.W.1 and on Ex.P-1 so recorded, he had the thumb impression of P.W.1 affixed. At 10.30 p.m. he registered Crime No. 176 of 1985 under Sec.324, Indian Penal Code and prepared Ex.P-13, printed first information report. He found injured Esravel in the accident ward. He was not in a position to talk. Hence, he obtained a statement from P.W.1 and on Ex.P-1 so recorded, he had the thumb impression of P.W.1 affixed. At 10.30 p.m. he registered Crime No. 176 of 1985 under Sec.324, Indian Penal Code and prepared Ex.P-13, printed first information report. He forwarded Exs.P-1 to P-13 to the Judicial Magistrate, Erenial, while despatching copies of Ex.P-13 to his Superior Officers. 6. P.W.10, Dr.Ponmudi Civil Assistant Surgeon, Government Headquarters Hospital, Nagercoil, examined at 9.10 p.m. on 23. 1985, injured Esravel referred to by Government Hospital, Thakkalay. He found the patient unconscious. He admitted him in the accident ward. The wounds found on him had already been sutured. At 10.15 p.m. on the same night P.W.11 Dr.Azhakesan took X-ray of the skull of injured Esravel. He found a fracture on the right parietal bone. In his opinion that injury on the parietal region was a grievous injury. Ex.P-4 is the Skiagram and Ex.P-5 is his report. The fracture noticed by him could have been caused by beating with the wooden portion of M.O.I. 7. P.W.16 Chidambaram, Sub Inspector of Police, on receipt of a copy of Ex.P-13 at 4 a.m. on 23. 1985, took up investigation and reached the venue of crime at 5 a.m. On his arrival at the scene, he prepared observation mahazar Ex.P-16 and scene sketch Ex.P-17. He recovered blood stained tar earth from the scene under mahazar Ex.P-18. At 9.30 a.m. he saw injured Esravel at Government Headquarters Hospital, Nagercoil. Esravel was not in a position, to talk. Dr.Thangavelu (not examined) sent Ex.P-6 death intimation informing that patient Esravel expired at 10.30 a.m. on 23. 1985. On receipt of death intimation, P.W.16 altered the crime into one under Sec.302, Indian Penal Code and prepared express report Ex.P-19, copies of which he forwarded to the concerned Magistrate and to his superior officers. P.W.18, Natarajan, Inspector of Police, Thakkalay, on receipt of a copy of Ex.P-19at 3.30 p.m. on 23. 1985, took up further investigation and proceeded to the Government Hospital, Nagercoil. Between 4 p.m. and 6 p.m. he held inquest over the corpse of Esravel, during the course of which he examined P.Ws.2, 1, 3 and 4. Ex.P-20 is the inquest report. P.W.18, Natarajan, Inspector of Police, Thakkalay, on receipt of a copy of Ex.P-19at 3.30 p.m. on 23. 1985, took up further investigation and proceeded to the Government Hospital, Nagercoil. Between 4 p.m. and 6 p.m. he held inquest over the corpse of Esravel, during the course of which he examined P.Ws.2, 1, 3 and 4. Ex.P-20 is the inquest report. After inquest, he sent the dead body through a police constable with a requisition Ex.P-7 to P. W. 12 Dr.Nagarajan for the conduct of post-mortem. At 7 p.m. P.W.18 seized from P.W.1, Dhoti M.O.2 under mahazar Ex.P-22. 8. P.W.12 Dr.Nagarajan, commenced autopsy at 12.15 p.m. on 23. 1985. Death appeared to have occurred 24 hours prior to conduct of post-mortem. The following injuries were noticed: “1. A sutured wound over middle of the forehead with an abrasion in the shape of question which is parallel to the forehead crease tail and i:. towards the right eye; shape of the wound is T size each 1”. 3 sutures were found as almost closed. 2. A sutured wound on the ventex of head. Irregular in shape with contusion surrounding it. Bloody fluid coming out through the wound. 4 sutures are present shape is inverted. Size 2“. Surrounding contusion is 3” in radius. 3. Abrasions look 4 days old which starts from root of the nose down to the tip and ending with left. Cuticle alone is peeled off. Size 2“x 1 1/2”. 4. Similar abrasion over outer angle of left eye each 1/2“x 1/2” skin deep in size. 3rd and 4th injuries looked 4 days old. clotted blood was seen in the left costril.“ While removing the scalp extravasation of blood was noticed with blood clots amounting to 15 ml. Fracture was found on the right parietal bone starting from the vertex down to right ear. Line of fracture was irregular measuring 7”. There was subdural clot weight in 100 gms. There was a further depression over parietal lobe. In the base of skull collection of blood amounted to 16 ml. There was no fracture on the base of skull. No fracture was noticed on their ibs. In the opinion of the doctor, death was as a result of the head injury due to sub dural haemorrhage and shock. Ex.P-8 is the post-mortem certificate. The fracture on the right parietal bone and extravasation of blood were due to injur)‘No.2. Externa! There was no fracture on the base of skull. No fracture was noticed on their ibs. In the opinion of the doctor, death was as a result of the head injury due to sub dural haemorrhage and shock. Ex.P-8 is the post-mortem certificate. The fracture on the right parietal bone and extravasation of blood were due to injur)‘No.2. Externa! injury No.2 together with the internal injuries were fatal. Both the injuries could have been caused by hitting with the metallic ring portion of M.0.1. 9. P.W.18 arrested the respondent at 2 p.m. on 4. 1986 at Arasumoodu, in the presence of P.W.15 Thangappan. Respondent volunteered his admissible confession Ex.P-14. As a consequence of his confession, respondent produced M.O.I from a rubber garden east of C.S.I. church, which was seized under mahazar Ex.P-15. Material objects seized during investigation were forwarded for chemical analysis, through the Magistrate. Exs.P-11 and P-12 are the reports of Chemical Analyst and Serologist respectively. After completion of investigation P.W.18 laid the charge sheet. 10. When the respondent was examined under Sec.313, Crl.P.C, to explain the incriminating circumstances appearing against him in evidence, he chose to deny his complicity in the crime. He went on to add that deceased Esravel did not get him out on bail. He had not spent Rs.40 to be repaid by him. Neither did he attack the deceased with a spade handle nor confess leading to the recovery of the alleged weapon of offence. Deceased Esravel had a number of enemies in the village. He had not returned a gold chain borrowed by him from Selvamani which resulted in a fight between them. When he was returning from Azhakiya Mandapam, he was arrested. He proclaimed, that he was innocent. However, he did not choose to adduce any evidence in defence. 11. On assessment of oral and documentary evidence placed before his scrutiny, learned trial Judge held, that the prosecution had not established the guilt of the respondent beyond reasonable doubt and hence chose to acquit him. 12. Mr.B.Sriramulu, learned Public Prosecutor contended that the evidence of P.W.1 was natural and credible and she had no worthwhile cause to depose falsely against her own younger brother. According to him, learned Sessions Judge h3d misdirected himself on the above motive aspect expecting proof only through documents, when oral evidence was quite relevant and acceptable. 12. Mr.B.Sriramulu, learned Public Prosecutor contended that the evidence of P.W.1 was natural and credible and she had no worthwhile cause to depose falsely against her own younger brother. According to him, learned Sessions Judge h3d misdirected himself on the above motive aspect expecting proof only through documents, when oral evidence was quite relevant and acceptable. He pointed out that there was no divergence between the ocular version and the medical evidence and the view expressed contra by the learned Sessions Judge cannot stand even a moment’s scrutiny. He vehemently submitted that the view taken by the learned Sessions Judge was not plausible at all and the only view that could have been arrived at was that the respondent was the offender whatever may be the nature of offence. He was fair enough in submitting that the respondent will not be liable for murder, but he was bound to be convicted either under Sec.304, Part II, I.P.C., or under Sec.326, Indian Penal Code. 13. On these contentions, we have heard Mr.D.Subbaroyan, learned counsel representing the respondent. He contended that since the other ocular witnesses had turned hostile, it was reasonable, for the learned Sessions Judge to have expected some lending assurance evidence. He further submitted that the learned Sessions Judge cannot be said to have committed an error when he doubted the venue of crime. He commented, that the recovery evidence was worthless. He pleaded for sustainment of the verdict of the trial Judge. 14. We are aware, that the law is consistent that in appeals against acquittal, this Court must be slow in interference, and must give due weight to the opinion offered by the learned Sessions Judge who had occasion to notice the demeanour witnesses. High Court must also be able to give out cogent and convincing reason while setting aside an acquittal and in that process must be able to demonstrate that its reasons were more weighty and clinching than the reasons offered by the trial Judge, in the process of acquitting the accused. If this Court is of the view that two views were possible on the evidence recorded and one view had been taken by the trial Judge, it should desist from interfering with the acquittal of the respondent. 15. If this Court is of the view that two views were possible on the evidence recorded and one view had been taken by the trial Judge, it should desist from interfering with the acquittal of the respondent. 15. Keeping in view, the principles enunciated for interference in appeals against acquittals, we will now proceed to analyse the entire evidence, in which process, we will carefully have in our view, the reasons recorded by the trial Judge, to distrust the evidence placed for his assessment. Before we embark in scrutinising the entire evidence, it will be necessary to mention the reasons assigned by the learned Sessions Judge to acquit the respondent, of this grave crime. Those reasons are as hereunder: .(1) Though motive for a crime need not have to be established in every prosecution, if a specific motive is alleged, the court is bound to find out if such motive was sufficient to lead to the crime. On such scrutiny, of the motive evidence, it was seen that the prosecution had not established, the date on which the respondent was brought out on bail, the court which ordered his being released on bail, or the case number in which such an order was passed by producing documentary evidence. It was also not proved by the prosecution, that in fact a non-bailable warrant was pending against the respondent, which led to his arrest to necessitate the deceased taking him out on bail over again. This according to the learned Sessions Judge was important, since the respondent has denied all those details, when examined under Sec.313, Crl.P.C. .(2) P. W.2 could not have been an eye witness, since in her cross-examination she has admitted that only after the crime, on hearing the hue and cry of P.W.1, she had arrived at the scene. The evidence of P.W.1 also was in the same direction. The name of P.W.2 has not been mentioned in the first information report. .(3) Evidence of P.Ws.5 and 6 will have to be rejected, since there was a discrepancy between their versions and that of P.W.1 regarding the direction in which the respondent escaped from the scene. .(4) Since the medical officers have not noticed any injury on the back of the head of the deceased, the evidence of P.W.1 has to be distrusted. .(4) Since the medical officers have not noticed any injury on the back of the head of the deceased, the evidence of P.W.1 has to be distrusted. Further the manner of attack on the deceased as spoken to by P.W.1, was not fully corroborated by the medical version. Therefore, it was not safe to base a conviction on the evidence of PW.1. .(5) There was discrepancy about the venue of crime between the oral evidence and seizure mahazar Ex.P-18. .(6) Recovery evidence cannot be accepted since there was no blood stains in M.O.I and it was doubtful if M.O.I was the weapon of offence. .(7) P.W.1 had not stated to P.W.9, that the attack on her husband was by a known person and further her availability in the village on the next morning to be examined by P.W.16, cannot be accepted. .(8) Since Esravel had come out after serving sentence in a murder case, it appears he had plenty of enemies. 16. Motive for this crime has been spoken to by P.W.1 and it has also been stated in Ex.P-1, recorded from P.W.1 at 10.15 p.m. on the occurrence night, at Government Hospital, Nagercoil. We cannot overlook that Ex.P-1 though registered under Sec.324, I.P.C., was in the hands of the concerned Judicial Magistrate even at 11 a.m., on 23. 1985. At that time, the deceased was alive and hence the sanctity of Ex.P-1 gets strengthened. Even at this stage, we are bound to state that Ex.P-19 express report of the altered crime, was received by the Magistrate at 4 p.m. on 23. 1985. In Ex.P-1, P.W.1 has stated, that the respondent had to pay Rs.40 to her husband for the expenses incurred by him to get the respondent released on bail, in a case of cutting timber. She has also spoken about the altercation between her husband and the respondent when the former demanded repayment of Rs.40. It was then, that the occurrence had taken place. In her oral evidence, P.W.1 has given out further details about the respondent getting himself involved in a forest offence four years earlier in which he was released on bail, at the instance of her husband. It was in that case about 20 days earlier, on non-bailable warrant, respondent was arrested, leading to her husband intervening and spending his funds, to get his brother-in-law released over again. It was in that case about 20 days earlier, on non-bailable warrant, respondent was arrested, leading to her husband intervening and spending his funds, to get his brother-in-law released over again. P.W.1 had requested her mother for return of Rs.40 but she directed her daughter to get it from the respondent himself. It was, therefore, that the deceased had asked the respondent for repayment of Rs.40 when he happened to meet him on the way, while he was proceeding to the market place, along with his wife. We are unable to agree with the learned Sessions Judge that even minimum details regarding motive has not been furnished by the prosecution. P.W.1 has been cross examined rather extensively. She has stated that the respondent was arrested from her residence by the forest officials. Respondent was taken to Boothapandi. Bail was obtained from Nagercoil Court. It will be odd, to expect P.W.1 to furnish the crime number or the bail application number, she being an illiterate and the parties involved in the transaction being her husband and her younger brother. The bona fides of the case of P.W.1 regarding motive, will have to be appreciated and reasons should not be sought out, to somehow or other discard motive. Though the learned Sessions Judge, has correctly observed that when ocular version was available motive receded to the background, he has not correctly applied the said principle in appreciating the evidence available before him. It is of course true that a diligent investigating officer could have produced the concerned case record and established beyond doubt, that the respondent was involved in a forest offence, but that not having been done, will not logically result in this prosecution being thrown out, due to non-production of court records or police file to establish motive. The court is bound to consider, if the available evidence on motive fell short of the minimum requirement. If that cannot be so stated and further there was no reason to distrust the evidence of a close relation of the respondent who has spoken about the motive, it appears rather odd that a mountain had been made out of a mole hill to destruct the motive aspect projected by the prosecution. If that cannot be so stated and further there was no reason to distrust the evidence of a close relation of the respondent who has spoken about the motive, it appears rather odd that a mountain had been made out of a mole hill to destruct the motive aspect projected by the prosecution. It cannot be gainsaid that Boothapandi Forest area is within the Nagercoil jurisdiction, and naturally it was in a court at Nagercoil, that the deceased had helped the respondent to come on bail. We quite often come across questions being addressed to rustic witnesses about the rank of a police officer, when they all look alike in uniforms. If answers are given stating that a Sub Inspector of Police had recorded statements, immediately arguments are advanced, that it was recorded by an Inspector of Police. Such sort of arguments does not lead us anywhere for, and hence the witness, was a lier, the substance will have to be taken and not the result of a snap answer, cunningly obtained. In the same category will stand the ability of a rustic witness to speak whether bail was obtained from a court of a Magistrate or a higher court like the Sessions Court. When the fact remains, that the husband of P.W.1 had helped the respondent to come out on bail. It is not anywhere in evidence, that there was any deep seated animosity between the deceased and P.W.1 on the one hand and the respondent on the other. It is reasonable to infer and that appears to be the only inference possible, that after having failed to get Rs.40 from the mother of the respondent. On being conveyed the said information, the deceased had chosen to ask the respondent for repayment of Rs.40 when he happened to meet him on the way. It is not as though, that the deceased was in search of the respondent to demand the money due and equally the respondent was not aiming at the life of the deceased. With an assertion, that he would not repay the monies spent on his behalf by his brother-in-law. While appreciating evidence, the whole context, in the background of normal human behaviour, will have to be taken note of. With an assertion, that he would not repay the monies spent on his behalf by his brother-in-law. While appreciating evidence, the whole context, in the background of normal human behaviour, will have to be taken note of. If that is not done, it will always be possible to throw out every case, on some apparent discrepancies which do not really affect the care of the prosecution case, for a timid mind, is always tempted to take adverse decisions, even on flimsy material. A benefit of doubt is doubt, which is reasonable and hence cannot obviously be equated to a doubt entertained by a fickle mind. We have no hesitation in holding, that the respondent did have a motive thought not strong to attack the deceased and the finding of the learned trial Judge that motive had not been established, cannot be upheld for such a view, is not only contrary to available evidence, but also opposed to human probability. Even sans motive, if evidence of P.W.1 is accepted regarding the actual attack on the deceased, by the respondent that would suffice. 17. We are in agreement with the learned Sessions Judge that P.W.2 could not have been an eye witness, for even according to P.W.1, P.Ws.2 to 4 arrived at the scene. Only on hearing screams, P.Ws.3 and 4 have been treated hostile, and all that remains is the evidence of P.W.2 as an additional eye witness. She is a child aged about 11 years. It is quite possible that after she had arrived at the scene and had seen injured Esravel in the company of P.W.1 who was weeping, she had entertained an impression, on the basis of further information collected at the scene, that it was the respondent who had attacked the deceased and in that view had chosen to depose as an eye witness. In fairness, it must be stated, that though she had chosen to depose as an eye witness, in her cross-examination, she has fairly stated that she had arrived at the scene only after hearing the hue and cry raised by P.W.1. Since even P.W.1 was not aware, that P.W.2 was an ocular witness, the former had omitted to mention the name of P.W.2 as an eye witness in Ex.P-1. Since even P.W.1 was not aware, that P.W.2 was an ocular witness, the former had omitted to mention the name of P.W.2 as an eye witness in Ex.P-1. We will eschew from consideration the evidence of P.W.2 as an eye witness, but only place reliance on her evidence, to fix the venue of crime, and taking away of the injured victim in a car, by P.W.1 from the scene. It is quite possible, that P.W.2 could not have seen the occurrence for her elder brother who had also arrived at the scene, had only seen injured victim and his being removed in a taxi, to the hospital. The evidence of P.W.4 can also be relied upon, though hostile, only to the limited extent, that he had seen P.W. 1 taking her injured husband to the hospital, in a car. His evidence also affirms the presence of P.W.2 at the scene of crime, when the injured was taken away in a car, by his wife. We’ have meticulously perused the evidence of P.W.1 and it will be difficult to discard her version on any reasonable basis. Learned Sessions Judge has pointed out, that P.W.1 had not told the medical officer, P.W.9, that her husband had sustained injury, at the hands of a known person. Ofcourse, P.W.9 has also stated in cross-examination, that if mention had been made, that the assailant was a known person, he would have also noted that fact in the wound certificate. It is not possible for us to hold, that merely because P.W.1 had not chosen to inform the doctor that the assailant was a known person, her evidence, will have to be thrown away lock, stock and barrel. We have to notice the details furnished to P.W.9 by P.W.1. She has stated that the occurrence was at 6 p.m. on the same and the assault was with a manvetti’. It is quite possible, that she had not stated who the assailant was or that he was a known person, but it could hardly make any difference, especially when the assailant is her own younger brother and shortly after the victim was sent over to the Nagercoil hospital, she has informed the police about the assailant of her husband. It is quite possible, that she had not stated who the assailant was or that he was a known person, but it could hardly make any difference, especially when the assailant is her own younger brother and shortly after the victim was sent over to the Nagercoil hospital, she has informed the police about the assailant of her husband. This is not one of those cases, where due to deep seated animosity or a factional cause, somebody had to be implicated as an accused in a crime, with an ulterior motive. This is a case of a single accused, in an unfortunate and unexpected incident. It is not as though a medical officer, questions the persons present with the victim,certain listed questions and elicite answers for filling up columns in the wound certificate. Relevance of mention or non-mention’ as ‘known’or ‘unknown’ will vary from case to case, depending upon the background, inclusive of a plethora of relevant circumstance. To our minds, it will be unfair and totally illogical, to reject the evidence of P.W.1, merely because the medical officer has not noted in the wound certificate, if the assailant was ‘known’ or ‘unknown’. We are even unable to agree with the learned Sessions Judge, that P. W. 1 could not have been present at her village, for examination by P.W.16, early in the morning on 23. 1985. We should be able to visualise, that from the scene of occurrence P.W.1 was constrained to remove her husband to a hospital and in the life of that rustic woman, Rs.40 was a huge sum. If she had to take her husband from one hospital to another, common sense would dictate, that she might have returned to her village, either to collect funds and/or to take clothings and other requirements to her husband and for herself, when hospitalisation was expected to lost for sometime and death was not immediate. That P.W.1 returned with her husband prior to his death. As a matter of fact P.W.16 himself, has seen the deceased alive, at 9.30 a.m.on 23. 1985, at Nagercoil hospital. If only P.W.1 had been questioned as to why she had returned to the village, all these answers would have been furnished, and on imagination, her evidence ought to have been discarded. As a matter of fact P.W.16 himself, has seen the deceased alive, at 9.30 a.m.on 23. 1985, at Nagercoil hospital. If only P.W.1 had been questioned as to why she had returned to the village, all these answers would have been furnished, and on imagination, her evidence ought to have been discarded. It will be necessary for a court, to place itself in the position of a witness while appreciating the tenor and truth of the version deposed before it. If only that had been done, the learned Sessions Judge would not have chosen to outright suspect the evidence of P.W.1 on reasons totally untenable, which do not make any positive impression, even remotely in our minds, for neither the process nor the conclusives are appealing even in the least. Even without minimum evidence learned Sessions Judge has stated, that the deceased had come out after serving sentence in a murder case and it appeared to him that the deceased had many enemies. Courts will have to act on available material and certainly not an presumed impressions, when not called for. Equally the rejection of the evidence of P. W. 1 on the ground, that it was contrary to medical evidence, does not have any weight whatever. It is of course, the definite evidence of P.W.1, that initially her husband was attacked on his forehead and while he was leaning in pain, the second hit was on the back portion of the head. No doubt, there is no injury on the back of the head. However, an injury has been noticed proceeding from the center of the head towards the right ear region. If the victim was leaning, and a hit was aimed when he was so leaning, it does not appear to be anything unreasonable if P.W.11 had formed an impression that the second injury had fallen on the back of the head of her leaning husband. After all the center of the head and its back, are not separated vastly. It would amaze us, if a court is to expect of a witness to specifically depose, in her evidence, the exact location of the injuries in a measured manner as to how many inches away from the centre of head, the second beating had fallen. After all the center of the head and its back, are not separated vastly. It would amaze us, if a court is to expect of a witness to specifically depose, in her evidence, the exact location of the injuries in a measured manner as to how many inches away from the centre of head, the second beating had fallen. We should be able to visualise, that during an altercation between the respondent and the deceased, unexpectedly the respondent had pulled out the weapon from his shoulder and suddenly attacked the victim. Once the fact is certain, that two injuries had been caused one on the forehead and another hit on the head of the deceased, that would suffice. One other approach made by the learned Sessions Judge to distrust P.W.1 relates to the landing of the metal portion of the wooden portion, of the spade on the head of the victim. If P.W.1 had entertained an impression that the metal portion had landed, and if the medical officer then expects a more serious injury, it does not stand to reason, that M.O.I could not have been the weapon, used in the occurrence. To reiterate a doubt entertained must be real and genuine to lead to a conclusion that it was reasonable on such doubt, to exonerate the respondent. We fail to see the possibility of entertainment of any such reasonable doubt, more so when there is no violent contradiction between the oral and medical evidence. After all medical evidence is hypothetical in nature. It is not the medical evidence, that a spade could not have caused the injuries found on the head of the deceased. If a cutting instrument and not a blunt weapon, should have caused the injuries on the deceased, then probably the learned Sessions Judge, would have been justified in doubting the evidence of P.W.1 and then expecting lending assurance evidence. Even on that ground acquittal of the respondent by the learned Sessions Judge does not appear to be based on any logical or appealing foundation. We accept the evidence of P.W.1, in its totality and hold that there is no divergence whatever between the medical evidence and the oral evidence. Even on that ground acquittal of the respondent by the learned Sessions Judge does not appear to be based on any logical or appealing foundation. We accept the evidence of P.W.1, in its totality and hold that there is no divergence whatever between the medical evidence and the oral evidence. We have to only point out that P.Ws.9 and 12 have affirmed, that injuries found on the victim, could have been caused by the metallic portion, as well as the stick portion of the weapon like M.O.1, depending upon that part of it coming into contact with that portion of the head. We should also not lose sight of the fact, that P.W.9 had noticed fresh bleeding present, when he examined the victim at 8.15 p.m. and even then use of a manvetti had been mentioned to him. When a weapon is aimed on the head portion and that too suddenly, the accused would not regulate the use of the weapon, so as to cause hurt to the victim, by the ring or wood portion alone, and equally it will be impossible for any witness to speak with certain and meticulous precision as to which portion of the weapon had landed on the victim, when the whole occurrence was over in a trice. 18. The evidence of P.Ws.5 and 6 does not lend assurance to the case of P.W.1. Both of them had seen the respondent running through the rubber garden with the weapon of offence. They had further seen P.W.1 present along with her injured husband. All the three witnesses have uniformly stated, that the respondent escaped through the rubber garden. Ofcourse P.W.5 has not stated rubber garden, but has stated merely has slated merely garden. That could make hardly any difference. A running away person, will not always stick on to the same direction is bound to change. Even otherwise once the presence of the respondent at the scene gets fixed and his running away with the weapon cannot also be discarded, since evidence therefor is clear and cogent. Based on the direction of escape, too trivial in nature, the editice of the prosecution cannot be allowed to be sheltered, on what is generally called ‘on nothing’ 19. We must now see if there is any real discrepancy in the scene of occurrence. Blood stains have been recovered from the venue of crime under Ex.P-18. Based on the direction of escape, too trivial in nature, the editice of the prosecution cannot be allowed to be sheltered, on what is generally called ‘on nothing’ 19. We must now see if there is any real discrepancy in the scene of occurrence. Blood stains have been recovered from the venue of crime under Ex.P-18. That earth contained human blood according to chemical analysis. As pointed out by the learned Sessions Judge, Ex.P-18 states, that such blood was seized from the western portion of the school from the tar road. However, Ex.P-16 observation mahazar prepared at 5.30 a.m. 30 minutes earlier to Ex.P-18 has clearly described that the scene was situated 40 feet north-east of the said school and it was in that place that blood stains were noticed. Further, it is the consistent evidence of P.W.1, that place where her husband got injured was forty feet east of the school. It is the same police officer (P.W.16) who had prepared Exs.P-16 and P-18. P.W.16 in his substantive evidence has stated, that a mistake had been committed, in noting the direction, in Ex.P-18, It is in evidence that an inadvertent mistake had been committed in scribing Ex.P-18. When the oral evidence and the contents of Ex.P-16, almost a contemporaneous document, affirm that blood stains were found north-east of the school, on the basis of Ex.P-18 it will not be possible to doubt the venue of crime. All the other witnesses furnishing res-gestae evidence have also fixed the venue of crime, correctly, as north-east of the school. Learned Sessions Judge was not justified to doubt the scene of occurrence, merely on the basis of a line in Ex.P-18 when overwhelming evidence otherwise, has clearly fixed the scene of crime and its location, inclusive of its direction from the school. 20. We do not think it necessary to delve deep into the recovery evidence, for M.O.I admittedly did not contain any blood stains. Recovery of course does not appear to be doubtful; but since it is not a clinching connection between the crime and the respondent, no further problem is called for. 21. We hold that the view taken by the learned Sessions Judge is not a plausible view at all and the erroneous process adopted by him in appreciating the evidence has led to grave miscarriage of justice. 21. We hold that the view taken by the learned Sessions Judge is not a plausible view at all and the erroneous process adopted by him in appreciating the evidence has led to grave miscarriage of justice. If failure of justice has to be set right, we are bound to interfere in this appeal and hold that the respondent is undoubtedly the assailant of the deceased. 22. Having arrived at this conclusion, we are still bound to assess the nature of offence committed by the respondent. We have already stated that the incident was not due to any premeditation. Neither the respondent expected the deceased nor viceversa. Meeting between the parties was rather casual. It cannot even be held that the respondent was armed with a view to attack the victim. He was coming back home after his work and in the usual course he was carrying his spade on his shoulder. Only in the course of an. altercation that took place between him and the deceased, he had chosen to take the spade and attack the victim. The respondent had not used the blade portion of the spade on the victim but had utilised only the wooden portion of the weapon. The manner in which the respondent had acted in the course of an unexpected quarrel does indicate that he had neither mensrea to kill nor even the knowledge that by his act, he was likely to cause the death of the deceased. Anyhow, we can, easily, be imputed with mens rea that he must have known that the life of the deceased would be endangered by his act. If that be so, respondent will be liable under Sec.326, Indian Penal Code and certainly not for murder. Hence, while reversing the verdict of the learned Sessions Judge, we find the respondent guilty under Sec.326, Indian Penal Code. Further proceedings will follow, to question the respondent on sentence. 23. Respondent was produced before on 7. 1993. After informing him that we have convicted him under Sec.326, I.P.C., we questioned him on sentence. He pleaded for sometime to plead on sentence. We adjourned the matter to 18. 1993 for further proceedings. 24. On 18. 1993 respondent again appeared before us. He prayed for some more time to plead on sentence, since he was attempting to collect funds. As a last chance, we directed his appearance over against before us today (9. He pleaded for sometime to plead on sentence. We adjourned the matter to 18. 1993 for further proceedings. 24. On 18. 1993 respondent again appeared before us. He prayed for some more time to plead on sentence, since he was attempting to collect funds. As a last chance, we directed his appearance over against before us today (9. 1993), to be ques-tioned on sentence. 25. We questioned the respondent today (9. 1993) on sentence. He stated, that he has no job and he is now eking out his livelihood as a wage earner in Kerala State. Realising the grave nature of the offence committed by him, he stated, that now peace prevails between the families and that a lenient sentence may be awarded. 26. Taking note of the fact that the offence was committed in 1985 and the parties are closely related, we are of the opinion that sentence of two years rigorous imprisonment and a fine of Rs.10,000 will meet the ends of justice. Respondent was ready to deposit Rs.8,000 towards fine even today, since as stated by him on the previous occasion, he has taken steps to collect some funds, in the event of his being sentenced to pay a fine. 27. Registry will collect Rs.8,000 and issue a receipt therefor. For payment of balance of fine of Rs.2,000 respondent shall have four weeks time from to-day. In the event of collection of Rs.2,000, it shall be paid as compensation to P.W.1, Rajam, by the trial court where the sum of Rs.2,000 shall stand deposited. The sum of Rs.8,000 collected by the Registry today, shall reach P.W.1 (Rajam) in the form of a fixed deposit, taken out in her name, for a period of three years. Registry shall arrange for a fixed deposit receipt being taken in her name for Rs.8,000 for a period of three years in the Indian Bank, High Court Extension Counter, Madras. Fixed Deposit receipt shall be transferred by the Indian Bank, High Court Extension Counter to its Branch Office at Padmanabhapuram, Kan-yakumari District. Registry will also make arrangements through the Bankers to forward once in six months interest accrued during the currency of the fixed deposit to P.W.1, Rajam wife of Esravel, Mulmootuvilai, Perumchelambu, Velimalai P.O., Kanyakumari District. Fixed deposit receipt shall be despatched to the abovesaid Rajam, as soon as it is ready directly by the Bank. Registry will also make arrangements through the Bankers to forward once in six months interest accrued during the currency of the fixed deposit to P.W.1, Rajam wife of Esravel, Mulmootuvilai, Perumchelambu, Velimalai P.O., Kanyakumari District. Fixed deposit receipt shall be despatched to the abovesaid Rajam, as soon as it is ready directly by the Bank. After the expiry of three years, P.W.1 can utilise the proceeds of the fixed deposit receipt in whatever manner she desires. In default of payment of balance of fine of Rs.2,000 the respondent shall suffer rigorous imprisonment for six months. 28. Learned Public Prosecutor fairly stated that certain beneficial remissions in sentence notified by the State Government will attract the instant case and that the entire sentence of two years rigorous imprisonment now imposed will stand wiped out, since the present judgment will date back to the date of the order of the learned Sessions Judge. If that be so, respondent need not have to surrender before the prison authorities to undergo the sentence of two years rigorous imprisonment, now imposed on him. Regarding sentence of fine, we have stated about its disposal earlier. This appeal is disposed of accordingly.