Judgment 1. Valli alias Velli, who is the appellant herein, challenging the conviction and sentence for the offence under Sec.304 (II) of the Indian Penal Code to undergo rigorous imprisonment for two years, has filed this revision. 2. The facts are these: P.W.1 Muniyandi is the husband of the deceased Amirdham. P.W.2 Sumathy, who is 8 years old, is the daughter of the deceased. P.W.3 Nallalu is the P.W.1 ‘s sisters husband. P.W.4 Velli is the father of the deceased. They all belong to a village called Variyankuttam situated in Mudukulathur Taluk. 3. The appellant Velli is also hailing from the same village. The house of both P.W.I and the appellant are situated in one area. One year prior to the date of occurrence, P. W. 1 received a loan of Rs.500 from P.W.5. One Karuppiah, the husband of the appellant requested Rs.100 as loan out of the said amount. Accordingly, P.W. 1 gave Rs.100 to the said Karuppiah. Though it was agreed that the amount of Rs. 100 would be paid within one year, the said amount was not repaid. On request, P.W.1 gave some moretime for repayment. In the meantime, P.W.5 asked P.W.1 to pay back the loan of Rs.500 already received by him. In order to repay the amount, P.W.1 insisted the said Karuppiah to give back the loan amount. On request by P.W.1, P.W.2 also went to the house of Karuppiah and asked him to pay the amount. Similarly, the deceased who is the wife of P.W.1 frequently visited the house of the appellant and insisted both the appellant and Karuppiah to pay back the loan amount. However, they turned down her request stating that they would pay the amount to P.W.1. Under these circumstances, there was a misunderstanding between the deceased and the appellant. 4. The fateful occurrence took place on 29.7.1989. On that day at about 7 a.m., P.W.2 Selvi Sumathi went out of her house and was playing near a hut situated in the area where the appellant was residing. At that point of time, the deceased Amirdham, who was searching for P.W.2 for sending her to school came and saw P.W.2 playing. Thereupon, the deceased abused her as “TAMIL” Thinking that these abusive filthy words were aimed at her, the appellant came near the deceased and caught hold of her tuft and fisted on her chest. At that point of time, the deceased Amirdham, who was searching for P.W.2 for sending her to school came and saw P.W.2 playing. Thereupon, the deceased abused her as “TAMIL” Thinking that these abusive filthy words were aimed at her, the appellant came near the deceased and caught hold of her tuft and fisted on her chest. On seeing this incident, the other witnesses i.e, P.W.3 and others intervened and separated them. Thereafter, the deceased Amirdham went to her house and was sobbing. At about 8 a.m., P.W.1 came home arid though the deceased complained to him about the incident, P.W.1 did not take any steps, because it was a petty quarrel between the women. However, P.W.1 took the deceased Amirdham on 31.7.1989 at 10 a.m. to Melkodumanur Hospital, as the deceased complained intolerable pain on her chest. 5. P.W.6 Doctor Meenakshisundaram examined the deceased and directed her to go to the General Hospital, Ramanadhapuram to take ‘X’ ray and to take suitable treatment. Ex.P-2 is the outpatient chit. Despite the medical advice, P.W.1 did not choose to take her to the General Hospital at Ramanadhapuram as he was not having sufficient money. However, P.W.1 took the deceased to the house of P.W.4, who is the father of the deceased and left her. This time on 2.8.1989, P.W.4 took the victim to the Doctor/ P.W.6 at Melakodumalur again for medical examination. Then, P.W.6 after making check-up, advised her that she must be taken immediately to the General Hospital, Ramanadhapuram to take effective treatment. Even in spite of this, P.W.4 did not make any arrangement for taking the deceased to the General Hospital, at Ramanadhapuram. Ultimately on 12.8.1989, the deceased died at P.W.4s house. On hearing the sad news, P.W.1 went to Abiraman police station at 2 p.m. and gave a complaint to the Sub Inspector of Police. Ex.P-1 is the complaint. 6. P.W.9 registered the case for the offence under Sec.302 of the Indian Penal Code. P.W.10, the Inspector of Police, incharge of the police station went to P.W.4s house at Oorakudi and conducted inquest between 5 and 6.30 p.m. Ex.P-9 is the inquest report. On 13.8.1989, P.W.10 went to the scene and prepared the observation Mahazar and sketch. On the same day, the appellant was arrested. 7. P.W.7 Doctor Mohan attached to the General Hospital, Paramakudi, on receipt of requisition Ex.P-3, conducted post-mortem at 8.45 a.m. on 13.8.89. On 13.8.1989, P.W.10 went to the scene and prepared the observation Mahazar and sketch. On the same day, the appellant was arrested. 7. P.W.7 Doctor Mohan attached to the General Hospital, Paramakudi, on receipt of requisition Ex.P-3, conducted post-mortem at 8.45 a.m. on 13.8.89. He found the following: “Appearances found at the post-mortem body of a female lying on its back rigor morties passed off with closed eyes and clenched hands. No external injury seen on the body and chest. No evidence of any injury seen on the skull on any region. Bullac and colour changes seen on the body face was swollen with discharge of blood through nose and mouth. Teeth were intact. Hyoid bone intact. Internal Examination: Stomach contained about 200 ml of pale liquid odorous. Livery showed fibrous healed vertical fibrous structure probably representing on old vertical injury to the liver. Lungs appeared pale heart found normal. Spleen was pale. Intestine was pale with liquid present inside. Externals surface showed nodular tubular eleccatians on the kidney and cut surface showed pale bleached like fibrous areas. On opening the skull it was found that membrances of the brain were adherent to the inner surface of the skull over several areas. Especially on the anterior half. Examination and observation of rules and Gyn showed scattered clot like areas possibly of hemorrhage areas especially in the perieto occipital areas away from the corpus, colloron, Brain substance was not liquified. Post-mortem examination was concluded at 10.40 a.m.” He issued post-mortem certificate Ex.P-4 and opinion Ex.P-5. He opined that the death occurred due to infection and its spread involving vital organs, liver, lungs and brain. Then, after investigation, charge sheet was filed on 31.1.1990 for the offence under Sec.302 of the Indian Penal Code. 8. On consideration of material adduced by the prosecution through P.Ws.1 to 10, Ex.P-1 to P-11, the Trial Court concluded that the appellant was liable to be convicted for the offence under Sec.304 (II) of the Indian Penal Code and sentenced her to undergo R.I. for two years, by acquitting the appellant in respect of the charge under Sec.302 of the Indian Penal Code. 9. On being aggrieved over the conviction and sentence, the appellant has preferred this appeal. 9. On being aggrieved over the conviction and sentence, the appellant has preferred this appeal. Ms.P.V.Rajeswari, learned counsel for the appellant while challenging the judgment of conviction would press into service the contentions, which are as follows: (1) The prosecution has not established its case beyond reasonable doubt, inasmuch as there is a vital contradiction with respect to the manner in which the deceased sustained injury, as seen from the evidence of P.Ws.2 and 3 and the evidence of P.W.6 and P.W.10. (2) Even assuming that the entire case is true, the appellant could not be convicted for the offence under Sec.304(II) of the Indian Penal Code, and at the most she could be convicted for the offence under Sec.323 of the Indian Penal Code, as there is no material through the medical evidence that the alleged attack was the direct cause for the death of the deceased. 10. In reply to the said contentions, the learned Government Advocate Mr.C.M.Gunasekaran, would submit that the prosecution has established its case through P.Ws.2 and 3 who are eye witnesses and there is no contradiction whatsoever, since P.W.6 did not admit during the course of cross-examination that deceased told him that the injury sustained by her was due to the accident. Further, the learned Government Advocate would concede that in the facts and circumstances of the case, it could not be said that the charge under Sec.304(II) of the Indian Penal Code has been proved, in view of the fact that the deceased died after 14 days due to infection, as admitted by the Doctor/P.W.7. 11. In the light of the above contentions, let me now go into the merits of the rival contentions. As correctly pointed out by the’ learned Government Advocate, I do not find any substance in the submission made by the learned counsel, with respect to the alleged contradictions, with regard to the manner of occurrence. It is the case of P.Ws.2 and 3 that the appellant on hearing abusive words spoken to by the deceased, thinking that those words were aimed at the appellant, rushed to the scene and fisted repeated on the chest. It is also made clear through the evidence of P.Ws.1 and 4 that she took some treatment from P.W.6 on 31.7.1989 and 2.8.1989. It is also made clear through the evidence of P.Ws.1 and 4 that she took some treatment from P.W.6 on 31.7.1989 and 2.8.1989. Therefore, I am of the view that the prosecution had established that the appellant has participated in the commission of crime by fisting on the chest of the deceased. 12. Regarding the nature of offence committed by the appellant, it is seen from the record that the deceased died due to infection. As a matter of fact, P.W.7/Doctor would give an option that the deceased died due to infection on liver, lungs and brain. The relevant statement by the Doctor is thus: “TAMIL” It is relevant to note that he has not stated that the injury sustained by the deceased would be caused due to the fisting by the appellant that it is sufficient to cause death and the said injury is likely to cause death. Therefore, the intervening cause is the infection, as admitted by P.W.7/Doctor, who conducted post-mortem examination. In such a situation, this Court would hold that unless it is established that the injury sustained by the deceased is attributed to the accused and is the direct cause of death, the accused cannot be held liable for the act of causing death. 13. In Kalimuthu v. State Kalimuthu v. State, 1989 L.W. (Crl.) 295. the Division Bench of this Court would observe as follows: “P.W.7 has issued the post-mortem certificate, Ex.P-7 and which was filed by the prosecution itself, in which P.W.7 has stated in unambiguous term that the deceased would appear to have direct of septicaemia due to multiple injuries. We have therefore to draw necessarily by the conclusion to the injuries but was caused by septicaemia as per the evidence on record taken together.” 14. In Rajamancikam In re Rajamancikam In re, 1990 L.W. Crl. 193. again the Division Bench of this Court would observe as follows: “Pertinent it is to point out here that the deceased died of septicaemia after 12 days from the date of occurrence. In such circumstances we are of the view that the act of the accused would fall under Clause 8 of Sec.320, I.P.C, punishable under Sec. 326, I.P.C., as rightly contended by the learned counsel appearing for the appellant. In such circumstances we are of the view that the act of the accused would fall under Clause 8 of Sec.320, I.P.C, punishable under Sec. 326, I.P.C., as rightly contended by the learned counsel appearing for the appellant. In this view of the matter, the conviction of the appellant under Sec. 302, I.P.C. and sentence of imprisonment for life imposed on him by the Court below are not sustainable in law.” 15. The Apex Court in B.N.Kavatakar and another v. State of Karnataka B.N.Kavatakar and another v. State of Karnataka , 1994 S.C.C. (Crl) 579. while analysing the similar question, would observe as follows: “The next question that comes up for our consideration is what is the nature of the offence that the appellant have committed. The Medical Officer who conducted autopsy on the dead body of the deceased has opined that the death was a result of septicaemia secondary to injuries and peritonitis. As we have indicated above, the deceased died after five days of the occurrence in the hospital. On an overall scrutiny of the facts and circumstances of the case, coupled with the opinion of the Medical Officer, we are of the view that the offence would be one punishable under Sec.326 read with Sec.34, I.P.C.” 16. In view of the settled principles, as laid down by the this Court as well as the Apex Court, it is clear that the appellant could not be said to have caused death of the deceased by the act of fisting on the chest. In fact, in the cases referred to above, weapons were used and those injuries were caused due to the weapons, which are found to be grievous. In that context, the accused in those cases were convicted under Sec.326 of the Indian Penal Code. 17. Admittedly, in the instant case, the appellant used hands for fisting. There is no material to show that the injury inflicted on liver is a grievous injury. So, in such a situation, there is no other alternative for this Court except to conclude that the appellant could be attributed to have caused the injury which must be a simple. Therefore, it could be very well concluded that the appellant is liable to be convicted under Sec.323 of the Indian Penal Code and not under Sec.304 (II) of the Indian Penal Code. 18. Therefore, it could be very well concluded that the appellant is liable to be convicted under Sec.323 of the Indian Penal Code and not under Sec.304 (II) of the Indian Penal Code. 18. In view of the foregoing discussions and conclusions, the conviction and sentence imposed upon the appellant for the offence under Sec.304(n) of the Indian Penal Code and to undergo R.I. for two years are set aside. Instead, the appellant is convicted for the offence under Sec.323 of the Indian Penal Code and sentenced to undergo R.I. for one year. 19. With this modification, the appeal is dismissed.