Judgment :- S.M. SIDICKK, J. ( 1 ) THE Appellant! Accused filed this appeal as against the judgment of conviction and sentence passed by the learned District and Sessions Judge, South Arcot at Cuddalore in Sessions Case No. 208 of 1988 dated 7-7-1989 convicting the appellant under Section 304 (2) of I. P. C. and sentencing him to undergo rigorous imprisonment for five years. ( 2 ) THE prosecution case, as briefly stated, is as follows:the occurrence took place at 4 P. M. on 27-3-1988 in front of the house of the accused by name Santhanam at Melapazhangur colony. The deceased is one Anthonysamy. The charge framed against the accused by the lower Court is that the accused Santhanam with the intention to cause the death of Anthonysamy hit him with the stone marked as M. O. lover the middle of his head and the left side of his back. The daughter of the deceased Anthonysamy is P. W. 1 Lourdu Mary. P. W. 2 Karunakaran and P. W. 3 Anthonyraj are neighbours of the deceased Anthonysamy and the accused Santhanam. The children belonging to the family of the accused and the deceased were playing near the hayrick of one Chinnappan one day prior to the occurrence and the children were damaging the same and thereafter Chinnappan came there and questioned. The wife of the deceased Anthonysamy informed the said Chinnappan that it is only the children of the accused Santhanam, who caused the damage to his hayrick. At that time the wife of the accused Santha was cleaning the vessel and questioned the statement of the wife of the deceased by stating that her children were not responsible for the same and only the children of the deceased were responsible. Then third parties intervened and, pacified them and all of them went away. It happened one-day prior to the occurrence. On the next day, i. e. on 27-3-1988, at about 7 A. M. the deceased Anthonysamy was proceeding along the house of the accused Santhanam, where the wife of the accused alone was available and the deceased asked her for betel leaves and nuts. The wife of the accused questioned him as to why he was asking the same, when there was a quarrel between their families on the previous day. The wife of the accused questioned him as to why he was asking the same, when there was a quarrel between their families on the previous day. Then the deceased Anthonysamy left the place and again he happened to come along the house of the accused Santhanam at 3. 30 P. M. In the mean time, the wife of the accused Santha complained to her husband by stating that the deceased caught hold her hand and demanded from her the betel leaves and nuts. So when the deceased came along the house of the accused, he was stopped by the accused at about 4 P. M. while the deceased was crossing the house of the accused, the latter questioned the deceased about his conduct of demanding betel leaves and nuts from his wife besides catching hold of her hand. The deceased denied the incident as reported by the wife of the accused to her husband. Then there arose an altercation between them and the accused took the stone marked as M. O. 1 lying nearby and hit the same on the forehead of the deceased and the accused also assaulted on the back side of the deceased with the same stone. The deceased suffered head injury and fell down and became unconscious. Thereafter the accused ran away from the place of occurrence after throwing the stone. At first the deceased was taken to his house since there was no male help and on the next day i. e. on 28-3-1988 the deceased was taken to the General Hospital at Kallakurichi At Kallakurichi Hospital, the Doctor P. W. 6 Natarajan examined the injured Anthonysamy at 1. 30 P. M. on 28-3-1988 and he found two contusions over the middle of parietal region and on the left side of the back, and the Doctor issued the Accident Register marked as P-6. On the next day i. e. on 29-3-1988 from there the deceased was transferred to the Government Hospital at Cuddalore where he died on the same day. Meanwhile on 28-3-1988 Lourda Mary took the stone marked as M. O. 1 and went to the police station at Rishivandium and gave the complaint under Ex. P. 1 to the Sub Inspector of Police examined as P. W. 10 Badhusha. After receiving the complaint and recovering M. O. 1 from P. W. 1 under the mahazar marked as Ex. Meanwhile on 28-3-1988 Lourda Mary took the stone marked as M. O. 1 and went to the police station at Rishivandium and gave the complaint under Ex. P. 1 to the Sub Inspector of Police examined as P. W. 10 Badhusha. After receiving the complaint and recovering M. O. 1 from P. W. 1 under the mahazar marked as Ex. P. 2, the Sub-Inspector of Police P. W. 10 Badhusha registered the case in Crime No. 25 of 1988 at Rishivandium police station under Sections 341 and 323 of I. P. C. and prepared the printed F. LR. under Ex. P. 14 at 7. 30 P. M. The Sub Inspector of Police Badhusha went to the scene of occurrence and prepared the rough sketch under Ex. P. 15. At that time, he received the intimation of assault on the deceased and about the admission of the injured in the Government Hospital of Cuddalore from the police station of Kallakurichi under Ex. P. 5, which was sent by the Head Constable of Kallaku9chi police station examined as P. W. 9 Veeran. At 8. 30 P. M. on 28-3-1988 the Sub Inspector of Police P. W. 10 Badhusha prepared the observation mahazar under Ex. P. 3 in the presence of P. W. 5 Ammasi and another witness. At 8. 45 P. M. on 28-3-1988 the Sub Inspector recovered the blood stained shirt of the deceased Anthonysamy marked as M. O. 2 from P. W. 1 Lourda Mary under the mahazar marked as Ex. P. 4 in the presence of the same witnesses. The Sub Inspector examined the witnesses as P. Ws. 1 to 5 at the scene of occurrence and he stayed there for the night. On the next day i. e. , on 29-30-1988 at 12. 30 P. M. , he went to the General Hospital at Cuddalore and there he came to know about the death of the deceased Anthonysamy at 12 noon. The Sub Inspector of Police P. W. 10 Badhusha received the death intimation under Ex. P. 16 from the police outpost at the General Hospital at Cuddalore. Then he came back to the police station at Rishivandium at 5 P. M. and altered the section into Section 302 of I. P. C. and prepared the Express F. I. R. , under Ex. P. 16 from the police outpost at the General Hospital at Cuddalore. Then he came back to the police station at Rishivandium at 5 P. M. and altered the section into Section 302 of I. P. C. and prepared the Express F. I. R. , under Ex. P. 17 and the Sub Inspector despatched the Express F. I. R. , to the concerned officials through a Constable. On 29-3-1988, at 7. 30 P. M. , the Inspector of Police examined as P. W. 11 Dharmaraj received the Express F. I. R and went to the scene of occurrence at 8. 30 P. M. and perused the documents prepared already by the Sub Inspector, and thereafter the Inspector P. W. 11 Dharmaraj examined some more witnesses and stayed at the village for the night. On the next day morning i. e. , on 30-3-1988 the Inspector P. W. 11 Dharmaraj went to the Hospital at Cuddalore and conducted the inquest between 9 A. M. and 11 A. M. and prepared the inquest report under Ex. P: 19. During the inquest, the Inspector P. W. 11 Dhamlaraj examined the witnesses P. Ws. 1 to 3 and thereafter he handed over the dead body to the Constable with a requisition to conduct the post mortem by the Doctor under Ex. P. 7. The Doctor examined as P. W. 7 Veerasigamani conducted the autopsy on the dead body of Anthonysamy on 30-3-1988 at 12. 15 P. M. The Doctor found the following external injuries:1. Contusion of 4 x 4 cm. With abrasion dull red 1 x 1/2 cm over middle of head (in between parietal area ). 2. Contusion of 5 x 3 cm. Over left side of back. 3. An abrasion 1 cm. x 1 cm. present both the hip. 4. An abrasion 1 x 1/2 cm. Over the back of thigh. The doctor on opening injury No. 1 found extra-vastation of blood present underneath the contusion and on opening the skull the doctor found extra dural heamatoma 8 cm. x 6 cm. present in the left parietal area. According to the doctor the external injury No. 1 noted down by him corresponds to the internal injury. Ex. P. 8 is the post mortem certificate issued by the doctor P. W. 7 Veerasigamani. x 6 cm. present in the left parietal area. According to the doctor the external injury No. 1 noted down by him corresponds to the internal injury. Ex. P. 8 is the post mortem certificate issued by the doctor P. W. 7 Veerasigamani. After the post mortem, the Inspector P. W. 11 Dharmaraj examined the doctor P. W. 7 Veerasigamani and also P. W. 5 Ammasi. On 1-4-1988 at 3 A. M. P. W. 11 Dharmaraj arrested the accused Santhanam near the bus stand at Thiyagadurgam and sent the accused for remand on the same day. Later the Inspector P. W. 11 Dharmaraj was transferred and another Inspector examined as P. W. 12 Pannerselvam gave the requisition under Ex. P. 10 to send the blood stained shirt marked as M. 0. 2 for chemical analysis. The report of the chemical analysis is marked as Ex. P. 12 and the serologist report is marked as Ex. P. 13. After completing the investigation, the Inspector P. W. 12 Pannerselvam laid the charge sheet on 8-9-1988 against the accused under Section 302 of I. P. C. ( 3 ) ON the basis of the materials the lower Court framed the charge against the accused Santhanam under Section 302 of I. P. C. and the accused denied the same and claimed to be tried. To substantiate the charge, the prosecution has examined 12 witnesses and marked 19 documents and 2 material objects. ( 4 ) WHEN questioned under Section 313 of Cr. P. C. with reference to the incriminating circumstances appearing in the evidence on record, the accused denied the same. The accused did not choose to examine any defence witness. ( 5 ) ON consideration of the materials placed before the lower Court, the learned Sessions Judge at Cuddalore found the accused guilty of the offence under Section 304 Part II of I. P. C. and convicted the accused to undergo 5 years rigorous imprisonment. Aggrieved against the judgment of conviction and sentence the accused has come up in appeal. ( 6 ) AFTER hearing the learned Counsel for the Appellant/accused and the learned Public Prosecutor the point that arises for determination is as to whether the prosecution has proved its case beyond all reasonable doubt and if so what is the offence and what is the sentence. ( 6 ) AFTER hearing the learned Counsel for the Appellant/accused and the learned Public Prosecutor the point that arises for determination is as to whether the prosecution has proved its case beyond all reasonable doubt and if so what is the offence and what is the sentence. ( 7 ) POINT: There are three eye witnesses of the occurrence and they are P. Ws. 1 to 3. P. W. 1 Lourda Mary is the daughter of the deceased Anthonysamy. P. W. 2 Karunakaran and P. W. 3 Anthonyraj are the neighbours of the accused and the deceased. P. W. 2 Karunakaran turned hostile. So P. W. 1 Lourda Mary and P. W. 3 Anthonyraj alone speak to the occurrence. ( 8 ) THE learned Counsel for the appellant argued that P. Ws. 1 and 3 are related to the deceased, and if P. Ws. 2 and 3 are eyewitnesses to the occurrence, they would have lodged the complaint and they failed to do so and in such circumstances, the testimony of P. Ws. 1 and 3 should not be believed. Merely because P. Ws. 1 and 3 happened to be the relatives of the deceased, it cannot be said that their evidence should be ignored. A careful scrutiny of the interested witnesses viz. , relatives should be made. In the present case, a careful scrutiny of the evidence of P. Ws. 1 and 3 would go a long way to show that their evidence is natural and cogent and their evidence was not shattered during their cross-examination and their evidence has struck me as honest and trustworthy. Their presence at the scene of occurrence cannot be doubted on any score. In those circumstances, I am of the view that the testimony of P. Ws. 1 and 3 is entitled to credibility and their evidence will prove the prosecution case that the accused hit the deceased with the stone marked as M. O. 1 beyond all reasonable doubt and thereby the deceased suffered injuries. ( 9 ) ANOTHER contention that was urged on behalf of the appellant is that the occurrence had taken place on 27-3-1988 at 4 P. M. and the complaint under Ex. P. 1 was lodged by P. W. 1 Lourda Mary on 28-3-1988 at 6. 30 P. M. , and the scene of occurrence is 2 K. Ms. ( 9 ) ANOTHER contention that was urged on behalf of the appellant is that the occurrence had taken place on 27-3-1988 at 4 P. M. and the complaint under Ex. P. 1 was lodged by P. W. 1 Lourda Mary on 28-3-1988 at 6. 30 P. M. , and the scene of occurrence is 2 K. Ms. from the police station of Rishivandium, and it is stated in column 7 of the printed F. I. R. marked as Ex. P. 14 that the delay is due to the complainant, and so there is a delay of 26 hours in lodging the complaint, and it is fatal to the prosecution case. This contention of the learned Counsel for the appellant is untenable for the simple reason that P. W. 1 Lourda Mary has stated in her evidence that no male member was available in their family at the time of occurrence apart from the injured and therefore, she could not go to the police station immediately to prefer the complaint. The explanation offered by P. W. 1 Lourda Mary was not at all questioned during her cross-examination and it goes unchallenged. That apart P. W. 1 Lourda Mary being the daughter of the deceased was in an agitated mood to save his father viz. , the injured Anthonysamy and so she took him to their house and gave treatment with a local doctor, and on the next day she took him to the Government Hospital at Kallakurichi and then lodged the complaint at 4 P. M. under Ex. P. 1. In those circumstances the explanation given by P. W. 1 Lourda Mary is entitled to acceptance, and so it cannot be said that the delay in giving the complaint is fatal to the prosecution case. ( 10 ) YET another argument of the learned counsel for the appellant is that the police at Kallakurichi had sent the intimation under Ex. P. S to the police station at Rishivandium stating that the deceased was injured due to an assault in his village and he has been admitted in the hospital and later transferred to Head Quarters Hospital at Cuddalore, and in view of the intimation marked as Ex. P. S there cannot be further complaint to be given by P. W. 1 Lourda Mary and so the complaint given by P. W. 1 Lourda Mary under Ex. P. S there cannot be further complaint to be given by P. W. 1 Lourda Mary and so the complaint given by P. W. 1 Lourda Mary under Ex. P. S is hit by Section 154 of Cr. P. C. It is relevant to note that even before the intimation under Ex. P. S reached the police station at Rishivandium and later handed over to the Sub Inspector examined as P. W. 10 Badhusha, P. W. 1 Lourda Mary lodged the complaint in the evening at 6. 30 P. M. on 28-3-1988. Only on the basis of the complaint given by P. W. 1 Lourda Mary, the Sub Inspector examined as P. W. 10 Badhusha registered the case and went to the scene of occurrence and made an inspection of the same and prepared the observation mahazar and thereafter only he received the intimation of Kallakurichi police under Ex. P. S. In those circumstances the contention raised by the learned Counsel for the appellant in this respect is not entitled to any acceptable credence in this case. ( 11 ) IT was further argued on behalf of the appellant that the motive attributed for this crime is flimsy, and the demand of betel leaves and nuts by the deceased Santhanam from the wife of the accused Santha and catching hold of her hand is unbelievable, and so the benefit of doubt must be given to the accused. Even accepting that the motive is flimsy, the motive cannot loom large when there is the evidence of eyewitnesses (vide A. I. R. 1986 Supreme Court 18991 ). So on this score the accused cannot be given the benefit of doubt. On a careful, scrutiny and perusal of the oral and documentary evidence adduced in this case, I am to hold that the prosecution has proved its case beyond all reasonable doubt. ( 12 ) NOW turning to the offence made out in this case, the learned counsel for the appellant argued that there was no Intention to cause the death of the deceased and the accused hit the deceased with the stone marked as M. 0. 1, and so if at all the accused can be punished, he can be punished only under Section 323 of I. P. C. for causing simple hurt. 1, and so if at all the accused can be punished, he can be punished only under Section 323 of I. P. C. for causing simple hurt. Per contra, the learned Public Prosecutor contended that the accused inflicted the injury with the intention of causing such bodily injury as is likely to cause death and therefore, the conviction recorded by the lower Court under Section 304 Part II must be sustained and the sentence of 5 years rigorous imprisonment is justified. ( 13 ) IN the case on hand the important facts and circumstances are that suddenly a quarrel arose between the accused Santhanam and the deceased Anthonysamy over a trivial matter with regard to the alleged demand of betel leaves and betel nuts by the deceased from the wife of the accused Santha. It is in the evidence of the eye witnesses that an altercation was ensued and there were exchange of words and thereafter only the accused Santhanam took the stone marked as M. O. 1 lying near by and inflicted the injury on the head and on the back of the deceased Anthonysamy. According to the doctors examined as P. Ws. 6 and 7 in this case there was a contusion over the middle of the head, and on opening this injury on and the skull it was found that there was extradural haematoma in the left parietal area. P. W. 7 Veerasigamani has stated in his evidence that this injury is sufficient to cause the death in the ordinary course of nature and this injury is possible by a hit with the stone marked as M. O. 1. So there is a fatal injury on the head of the deceased, which is a vital part of the body. However there was no pre-mediation or pre-planning on the part of the Appellant/accused to inflict the fatal injury on the vital part of the body of the deceased. Therefore in the above facts and circumstances of the case, I am of the view that the accused had knowledge that this injury was likely to cause death and so he is liable, to be punished under Section 304 Part 11 of I. P. C. as rightly held by the lower Court. Therefore in the above facts and circumstances of the case, I am of the view that the accused had knowledge that this injury was likely to cause death and so he is liable, to be punished under Section 304 Part 11 of I. P. C. as rightly held by the lower Court. ( 14 ) AS already stated that there was a wordy quarrel and suddenly it was resulted in the assault of the accused with the stone marked as M. O. 1. Except the Injury No. 1, there is no other injury, which could cause the death of the deceased. The accused had no intention of causing such bodily injury as was likely to cause death. That apart the stone marked as M. O. 1 is not a deadly weapon. In the above facts and circumstances of the case, I am to hold that the Appellant/ Accused has to undergo 3 years of rigorous imprisonment for the offence committed by him under Section 304 Part II of I. P. C. This view gains support from a decision of the Supreme Court reported in Madhusudan Sathpathy and others v. State of Orissa. ( 15 ) CONSIDERING the above facts and circumstances of the case, I hold that the appeal is partly allowed and the Appellant! Accused, is guilty of the offence under Section 304 Part II of I. P. C. and he is sentenced to undergo 3 years rigorous imprisonment instead of 5 years rigorous imprisonment and the period of sentence already undergone by him is set off and the Jail Authorities will give the remission of sentence in accordance with the Government Orders passed by the Tamil Nadu Government to which the Appellant/accused is entitled to, and I answer this point accordingly. ( 16 ) IN the result, the appeal is partly allowed. The judgment of the learned Sessions Judge at Cuddalore in Sessions Case No. 208 of 1988 convicting the Appellant accused, under Section 304 Part II of I. P. C. is confirmed. But the sentence imposed on the Appellant/ Accused under Section 304 Part II of I. P. C is modified into 3 years rigorous imprisonment. The Jail Authorities will give remission of the sentence in accordance with the Government Orders passed by the Tamil Nadu Government to which Appellant! Accused is entitled. Appeal allowed partly.