Judgment : 1. For having caused the death of Anbu, by fisting him on his neck at or about 2 p.m. on 7. 1988, at a place adjacent to entry gate of Vinayaga Industries, Virugambakkam, appellant Adambava Mohideen was charged under Sec.302 I.P.C. in S.C.No. 173 of 1988 on the file of Court of Sessions, Chengalpattu. 2. On conclusion of trial, appellant was found guilty under Sec.304 (II), I.P.C, and sentenced to undergo rigorous imprisonment for five years. 3. The case of the prosecution can be summarised as hereunder: P.W.3, Mani is the owner of Vinayaga Iron Industries, situated at Virugambakkam. Srinivasan, husband of P.W.1 Malliga, was the watchman of the said industries, at the relevant time. Her house was situated adjacent to the company. P.W.3 knew the appellant and the deceased very well. At or about 4 p.m. on 30.6.1988, appellant and the deceased went over to the shop of P.W.3 together, for purchase of old iron. P.W.3 directed them to come over on the next morning. Accordingly, on 7. 1988 at or about 8-30 a.m. appellant and the deceased, on two cycles, reached the company of P.W.3. They purchased 200 Kgs of iron valued at Rs.200 and at or about 10-30 a.m. in a tri-cycle appellant removed the purchased iron, promising to pay the value of the goods on return. Deceased Anbu was staying behind in the shop of P.W.3. The two cycles on which the deceased and the appellant had originally proceeded to the shop of P.W.3, were also there. At or about 130 p.m. appellant arrived and paid Rs.150. to P.W.3 and demanded supply of 300 Kgs. more of iron. He attempted to load 300 Kgs. without paying for the same. P.W.3 prevented the appellant from loading the tricycle with extra iron and sent away the appellant, after unloading certain stock of iron, loaded already without permission. At that point of time, deceased demanded Rs.25 as commission from the appellant. Appellant refused to part with the money, since he had already suffered loss in the transaction. An altercation ensued between them. P.W.3 intervened and asked both of them to leave the precincts of the shop. Near the outer door of the company of P.W.3, appellant and the deceased were fighting with each other. P.W.1 noticed the said fighting. P.W.2 Abdul Khader separated the appellant and the deceased. An altercation ensued between them. P.W.3 intervened and asked both of them to leave the precincts of the shop. Near the outer door of the company of P.W.3, appellant and the deceased were fighting with each other. P.W.1 noticed the said fighting. P.W.2 Abdul Khader separated the appellant and the deceased. At that time, appellant fisted on the neck region of the deceased, on receipt of which the deceased fell down face upwards. There was a septic tank nearby with a cement covered. Deceased fell over there and sustained head injuries apart from abrasions Injured Anbu became unconscious. P.W.2 offered some water to the fallen down victim. P.W.2 proceeded to fetch a autorickshaw. Meanwhile, appellant ran away. P.W.2 returned to the scene, since he was not able to get at an autorickshaw. But to his dismay, he found that the deceased was dead.. M.Os.1 and 2 are the cycles on which the deceased and the appellant had reached the shop of P.W.3. 4. P.W.5, Chandrasekaran, owner of hire cycle shop, has identified M.O.1 as the cycle hired by the deceased at or about 8 a.m. on 7. 1988. 5. P.W.1 proceeded to Virugambakkam Police Station around 2-30 p.m. and complained about the occurrence to P.W-9, Thangamani, Head Constable. P.W.9 reduced into writing the statement of P.W.1. On Ex.P-1 so recorded, P.W.9 registered Cr.No.947 of 1988 under Sec.302, I.P.C. Ex.P-4 is the printed first information report. 6. On receipt of information, P.W.10 Ramiah Inspector of Police, took up investigation, reached the scene at 4-30 p.m. and prepared observation mahazar, Ex.P-5 and scene sketch, Ex.P-6. Between 5-15 p.m. and 8-15 p.m. P.W.10 conducted inquest over the corpse of Anbu and prepared inquest report, Ex.P-7. After inquest, he despatched the dead body through Police Constable, P.W.8, Rajaram, for the conduct of post mortem. 7. P.W.7 Dr.Neela Govindaraj commenced autopsy on the dead body at 11-30 a.m. on 7. 1988 and found the following injuries:- “1. Sub conjunctival haemorrhage transversely placed on both canthi, more intensely on the outer canthus of right eye. 2. Abrasion with loss of cuticle 1.5 x 0.5 cms along the iliac crest 3 cms. behind the anterior superior iliac spine on the left side. 3. Punctuate abrasions along the costal margin on right side over a length of 4 cms. starting 5.5 cms from midline. 4. Cresentric abrasion 6 x 0.2 cms over right costal margin. 2. Abrasion with loss of cuticle 1.5 x 0.5 cms along the iliac crest 3 cms. behind the anterior superior iliac spine on the left side. 3. Punctuate abrasions along the costal margin on right side over a length of 4 cms. starting 5.5 cms from midline. 4. Cresentric abrasion 6 x 0.2 cms over right costal margin. 12 cms from midline 5. Punctate abrasions 4 in number in a semi circular pattern on the lateral aspect of right lumbar region 3 cms above the iliac crest and below the costal margin. 6. Abrasion with loss of citicle with contusion 1.5 x 0.5 cms over postero-lateral aspect of left side neck 7 cms behind the clavicle at the level of thyroid cartilage. 7. Irregular abrasion 1.8x1 cm over right cbeek below and lateral to right eye extending from the outer border of right lower eyelid to malar prominence. 8. An obliquely placed abrasion 1 x 0.5 cms, 1 cm above right eyebrow and 1 cms from midline. 9. Abrasion with contusion 0.3 cms x 0.3 cms above the lateral end of right clavicle. 10. Contusion of scalp 2.5 x 1.5 cms over the right frontal area close to hair margin 9 cms above the lateral end of right eyebrow 7 cms from midline. Diffused contusion over the top of head close to midline on right side. Contusion of scalp over the left occipital region 1 cm from midline 8 cms behind the left ear. 11. Brain shows subdural haemorhage on the entire surface of brain with diffuse sub arachnoid haemorrhage, more intensely over fronto-parietal lobes, lateral surface of tempro-parietal lobes, under surface of frontal and temporal lobes and at the base over circle of wills region and over the inferior surface of cerebellum.” In the opinion of the Doctor, deceased would appear to have died of head injuries sustained by him. Injury No. 10 describing the left occipital contusion could have been produced if a person happened to fall flatly being pushed down by another on a cement platform. The three contusions found on the scalp either by itself or in a combination could have produced the haemorrhage described in injury No.11. The abovesaid injury was sufficient in the ordinary course of nature, to cause death. Death should have occurred 20 to 24 hours prior to the post mortem. 8. P.W.10 arrested the appellant at 6 p.m. on 7. The three contusions found on the scalp either by itself or in a combination could have produced the haemorrhage described in injury No.11. The abovesaid injury was sufficient in the ordinary course of nature, to cause death. Death should have occurred 20 to 24 hours prior to the post mortem. 8. P.W.10 arrested the appellant at 6 p.m. on 7. 1988 at K.K. Nagar at the junction of Anna Street and Kamarajar Street. After completing investigation, P.W.10, Balasubramaniam, who succeeded P.W.10, laid the final report on 38. 1988. 9. When the appellant was questioned under Sec.313, Cr.P.C. to explain the incriminating circumstances appearing against him in evidence, he denied his complicity in the crime. He went on to add that it was the deceased who demanded Rs.25/- from him for drinking arrack and when he stated that he did not have money, he tore away his shirt and beat him. According to the appellant, deceased himself fell down and he did not fist him at all. 10. On assessment of the oral and documentary evidence, learned trial Judge, while accepting the prosecution case, found that the appellant will be guilty only under Sec.304 (II), I.P.C and not under Sec.302 IPC and sentenced him as stated earlier. 11. Mr.N.Doraiswamy, learned counsel appearing on behalf of the appellant, urged a single contention. He submitted that even accepting the prosecution case, as done by the learned trial Judge, the offence, if any, revealed will be one punishable under Sec.323, I.P.C. and not Sec.304 (II), I.P.C. 12. On this contention, I have heard Mr.R.Regupathi, learned Additional Public Prosecutor. He was able to comprehend the total substance in this submission. 13. The case of the prosecution has already been narrated by me, in detail. P.W.3, the owner of Vinayaga Wires, is totally an independent witness. He has spoken about the quarrel that ensued near his shop, between the appellant and the deceased, which later developed into a fight, at the entrance gate. All that had happened near the entrance gate has been spoken to cogently by P.Ws. 1 and 2. P.Ws. 1 and 2 were also independent witnesses and they have neither animosity against the appellant nor affinity towards the deceased. All that had happened near the entrance gate has been spoken to cogently by P.Ws. 1 and 2. P.Ws. 1 and 2 were also independent witnesses and they have neither animosity against the appellant nor affinity towards the deceased. As a matter of fact, prosecution case itself reveals that the appellant and the deceased were closely moving together in that they had approached jointly P.W.3 for supply of iron on the earlier evening and came together on the next morning, as well, to purchase iron. Since the venture was joint, it appears that the demand made by the deceased for some commission was quite apt. However the appellant, who had to sell the iron for lesser price, was able to pay only Rs.150 to P.W.3 and had to pay Rs.50 more, for the stock already purchased. In that context, he had refused to part with money in favour of the deceased. It is in the course of the fight that had developed between the appellant and the deceased, that the former had fisted on the neck region of the victim. There is no external injury due to such fisting on the neck region of the deceased. In the heat of passion, such fisting had refuted Little could the appellant have realise that due to such fisting the deceased would fell on the cement cover of the septic rank, resulting in fracture of scalp bone, leading to his death. Such consequence, certainly, could not have been anticipated by the appellant. Mens rea that could be imputed to the appellant cannot exceed causing hurt to the deceased, in the course of a fight. The medical evidence affirms, that the death was due to fall on the cement slab and not because of the fisting by the appellant. It will be very difficult to hold that the proximate cause for the death of the deceased was the act of the appellant. It was rather unfortunate that the deceased had died. In my view, appellant can be found guilty only under Sec.323,I.P.C. and not Sec.304 (II), I.P.C. 14. Accordingly, the conviction and sentence imposed on the appellant under Sec.304 (II), I.P.C. shall stand set aside. Appellant is convicted under Sec. 323,I.P.C. and sentenced to undergo rigorous imprisonment for one year. It was rather unfortunate that the deceased had died. In my view, appellant can be found guilty only under Sec.323,I.P.C. and not Sec.304 (II), I.P.C. 14. Accordingly, the conviction and sentence imposed on the appellant under Sec.304 (II), I.P.C. shall stand set aside. Appellant is convicted under Sec. 323,I.P.C. and sentenced to undergo rigorous imprisonment for one year. It was pointed out by appellant’s learned counsel that certain beneficial remissions notified by the State Government would enure in favour of the appellant and that the entire sentence of one year rigorous imprisonment, now imputed will get wiped out. Mr.R.Regupathi, learned Addition al Public Prosecutor, conceded to this position. If that be so, appellant need not have to surrender before the prison authorities to undergo the unexpired portion of his sentence of imprisonment. This appeal is disposed of accordingly.