Judgment 1. The appellant was an accused in Sessions Case No.5 of 1986 before the Sessions Judge, Tirunelveli. He has been convicted under Sec.302, I.P.C. for committing murder of one Subbiah on 23.6.1985 at about 6.30 p.m. and sentenced to undergo imprisonment for life. The said conviction and sentence have been challenged in this criminal appeal. 2. The necessary facts for the purpose of disposal of this criminal appeal are as follows: P.W.l is a resident Vedanthampatti and he is working as a driver in K.T.C. at Puliankudi depot. The deceased Subbiah was his elder brother. On 26.3.1985.P.W.l was in his house. He had applied for leave. At about 2 p.m. the deceased came and informed him that the accused threw stones on the goats when he was grasing and there was a quarrel between him and the accused. He has also stated that they were separated by P.W.8 and one Pandi. The deceased Subbiah was residing at a distance of one furlong from the house of P.W.1. P.W.1 pacified the deceased and asked him to go to his house and told him that the matter can be settled in the panchayat. 3. At about 5.30 p.m. P.W.1 the deceased, P.Ws.2 and 3 were talking near the house of the deceased sitting on a rock. P.W.5 the daughter of the deceased was also standing near the house. The accused who was also a resident of that area came near them and told that he will not leave the deceased without stabbing him. P.W.I and others pacified the accused and asked him together his house. Accordingly the accused went to his house. Again at about 6.30 p.m., the accused came there and gave a blow on the left collar bones of the deceased with a knife M.0.1. The deceased caught hold of the accused. But the accused escaped from the clutches of the deceased and ran away from that place with the said weapon. The injured was given first aid by tieing the wound with the help of towel worn by the deceased on his head. The injured was taken to Senthamaram police station in a cart. P.W.3, P.W. 1 and another person went along with the deceased. The injured was given first aid by tieing the wound with the help of towel worn by the deceased on his head. The injured was taken to Senthamaram police station in a cart. P.W.3, P.W. 1 and another person went along with the deceased. In the said police station P.W.I gave a statement which was recorded by P.W.13, the Sub-Inspector of Police as per Ex.P.l at about 7.15 p.m. P.W.13 prepared the F.I.R. and forwarded the completed F.I.R. to the II Judicial Magistrate, Sankarankoil through P.W.11 a constable. He also forwarded the same to his higher officers. He arranged for an autopsy and sent the injured to the Hospital with a constable. On the basis of the said statement he registered a case Crime No.35 of 1985 under Sec.307, I.P.C. P.W.6 the Doctor attached to Government HospitalSankarankoil received the memo through the constable along with the body at 8.p.m. on 26.3.1985. He found that the injured had succumbed to the injuries. Accordingly he issued Ex.P-4 to the police. P.W.14 the Sub-Inspector of Police Senthamaram Police Station received a copy of the death information report Ex.P-4 at 9 a.m. on 26.3.1985 and altered the offence to one under Sec.302, I.P.C., and prepared express report Ex.P-18. He sent the copy of the report to the court to II Class Judicial Magistrate, Sankarankoil, and also to his superiors, P.W.15 the Inspector of Police Alangulam received the said F.I.R. on 27.3.1985 and proceeded to Senthamaram police station at 5 a.m. and from there proceeded to the scene of occurrence at 6 a.m. and prepared the observation Mahazar as per Ex.P-14 at 6.30 a.m. He draw the rough sketch Ex.P-19 and seized M.O.7 blood stained earth, M.0.8. sample earth from the scene of occurrence under mahazar Ex.P-15 in the presence of P.W.10. From there he proceeded to Sankarankoil Government Hospital at 9.15 a.m. and held the inquest over the dead body between 9.30 a.m. and 12.30 p.m. as per Ex.P-20. During the course of inquest he recorded the statement of P.W.1 to P.W.5. He also seized M.Os.4 and 5. P.W.5 made arrangement to send the dead body for autopsy with a requisition Ex.P-5 through P.W.12. 4. P.W.4 the Doctor attached to Government Hospital, Sankarankoil conducted autopsy on 27.3.1985 at 2.30 p.m. He noticed the following injuries: “A gaping state wound of 3? × 1/2? at centre and tapering towards both ends situated 1? He also seized M.Os.4 and 5. P.W.5 made arrangement to send the dead body for autopsy with a requisition Ex.P-5 through P.W.12. 4. P.W.4 the Doctor attached to Government Hospital, Sankarankoil conducted autopsy on 27.3.1985 at 2.30 p.m. He noticed the following injuries: “A gaping state wound of 3? × 1/2? at centre and tapering towards both ends situated 1? below inner and of left collar bone with blood clot over the injury on dissection subcutaneous haematema of 2? diameters in the left intercostal space deep to the external injury. A clean cut injury 1 1/2? length of left intercostal muscle deept to external injury.” He furnished his opinion that the said injured would appear to have died of shock and haemorrhage due to stab injury on chest. He issued a certificate Ex.P-6. 5. P.W.15 on information arrested the accused at Tenkasi Alangulam Main Road, Athiyuthu junction at 11 a.m. on 31.3.1985. On the basis of the statement recorded from the accused the seized M.O.I knife under mahazar Ex.P-13 in the presence of P.W.9 He also seized M.O.6 which was worn by the accused. After receiving the report of the Chemical Examiner and the Serologist as per Exs.P-9 and P-10 and after completing the investigation he submitted the charge sheet for offence under Sec.302, I.P.C. on 24.1.1985. 6. On committal the Sessions Judge framed a charge for an offence under Sec.302, I.P.C. The accused pleaded not guilty. 7. On behalf of the prosecution P.Ws.1 and 15 were examined and Exs.P-1 to P-20 were got marked and M.Os.1 to 11 were produced before the court. Neither any document nor any witness was produced on behalf of the accused. The plea the accused was one of total denial. The Sessions Judge after completion of the trial and after examining the accused under Sec.313, Crl.P.C. by putting all the incriminating circumstances which were against the accused convicted and sentenced him as mentioned above. 8. We heard the learned Advocate Mr.Selvarangan on behalf of the appellant and the learned Additional Public Prosecutor on behalf of the respondent. They took us through the relevant documents and the material evidence in the case. The learned Advocate for the appellant submitted that the court below was not justified in placing reliance on the evidence of P.Ws.1 and 5 for convicting the accused. They took us through the relevant documents and the material evidence in the case. The learned Advocate for the appellant submitted that the court below was not justified in placing reliance on the evidence of P.Ws.1 and 5 for convicting the accused. According to him the court was not justified in convicting the accused after discarding the evidence of P. Ws.2 to 4 who according to the prosecution were also eye witnesses to the incident. His further submission was that P. W. 1 could not have been present at the time of the incident in view of the fact that he was working as a driver in some other place. He also further pointed out that the evidence of eyewitnesses is not corroborated by the medical evidence and the Sessions Judge while convicting the appellant has not taken into consideration all these aspects. He further pleaded that if the evidence of the prosecution is believed then his alternative submission was that the act committed by the accused could not amount to an offence punishable under Sec.302, I.P.C. 9. We heard the learned Additional Public Prosecutor on these points. He submitted before the court that the evidence of P.Ws.1 and 5 who are the eye witnesses to the incident does not suffer from any legal infirmity. According to the learned Additional Public Prosecutor P.W.I who is the brother of the deceased was present on that date to attend the marriage and he had come after applying for leave and his presence at that time in his house cannot be doubted. Similarly, he pointed out that P.W.5 whois none other than the daughter of the deceased was very much present “in her house and the incident has taken place in front of the house of the deceased and under this circumstance it cannot be said that P.W.5 would not have witnesses the incident. As far as the alternative argument is concerned the learned Additional Public Prosecutor stated it was the accused who went to the deceased with the weapon and stabbed on the vital organ and hence the act committed by the accused was under Sec.302, I.P.C. It was not disputed before the trial court that Subbiah died with an homicidal death in view of the evidence of the Doctor P.W.6 and the certificate Ex.P-6 issued by him. Even before us the learned Advocate for the appellant did not dispute this fact. Even before us the learned Advocate for the appellant did not dispute this fact. 10. The prosecution has relied upon the evidence of the eyewitnesses P.Ws. 1 to 5. However, P.Ws.2 to 4 did not support the prosecution case. P.W.I is the brother of the deceased. He has in his deposition stated that on 26.3.1985 he was on leave and was staying in his house. At about 2 p.m. his elder brother the deceased came to his house and told him that there were wordy quarrel between him and the accused. He pacified him and asked him to go saying that the matter could be settled in village Panchayat. He has further deposed that at about 5.30 p.m. he, the deceased, P.Ws.2 and 3 were sitting on a stone near the house of the deceased where P.W.5 the daughter of the deceased was also present. At that time the accused came from his house and told his brother that he would not leave him. They asked the accused to go to his house since the matter could be discussed on next day morning. He has further deposed that at about 6.30 again the accused came there repeating the same words which he has uttered earlier. He stabbed his brother below the left collar bone. On receiving the said injury the deceased caught hold of the accused. But he escaped and ran away and the blood was coming out from the injury and he fell on the ground. He band-aid the said injury with the help of a turban and took the injured in a cart and to the police station at Senthamaram. P.Ws.2 and 3 also accompanied. Since his brother was not in a state of talking. P.W.I 3, the head constable recorded the statement as per in Ex.P-1. At that time it was about 7.15 p.m. When his statement was recorded. From there the Inspector sent him to the hospital. In the cross-examination he has admitted that he applied for leave on that day for the marriage of his brothers daughter which had to take place on the next day morning in their village. It was brought on record that he was present there on the date of incident in his house. Further though the witness was cross-examined at great length, nothing useful has been elicited by the defence to discard his evidence. It was brought on record that he was present there on the date of incident in his house. Further though the witness was cross-examined at great length, nothing useful has been elicited by the defence to discard his evidence. His presence was spoken to by P.W.5 and the other eyewitnesses, he has removed the injured and his statement was recorded by P. W. 13. In Ex.P-1 he has clearly stated the part played by the accused. The Sessions Judge has believed the version of this witness. There is no good ground to discard his evidence. We also believe the evidence of P.W.1, P.W.5 is the other eyewitnesses who is the daughter of the deceased. She has stated that on the date of the incident at about 6 p.m. she was standing in front of her house and at that time P.Ws.1 to 4 and her father were talking sitting on a stone in front of her house. At that time the accused came there and took up a quarrel. The persons separated them. Again after half an hour the accused came and stabbed her father with a knife saying that he would leave that place only after stabbing him. The accused stabbed the left collar bone of her father. The accused left the place, her father fell down unconscious. Later P.W.I along with other took her father in a cart and went to the police station at Senthamaram when she went to the Hospital on the next day she came to know that her father died. As far as this witness is concerned her presence at the place of occurrence is not disputed by the defence. She being the daughter of the deceased and the incident had taken place near their house her presence at the time of the incident near the scene of occurrence is natural. It was fully corroborated by the version given by P.W.I. Nothing incriminating materials have been brought on record in her cross-examination to disbelieve or discard her evidence. According to us she is a natural witness and her evidence is trustworthy. From the evidence of P.Ws. 1 and 5 it is disclosed that the accused caused injury on the deceased. The evidence of these witnesses is further corroborated by the medical evidence. Hence we hold that it was the accused who caused the injury on the deceased. 11. According to us she is a natural witness and her evidence is trustworthy. From the evidence of P.Ws. 1 and 5 it is disclosed that the accused caused injury on the deceased. The evidence of these witnesses is further corroborated by the medical evidence. Hence we hold that it was the accused who caused the injury on the deceased. 11. Coming to the alternate submission of the advocate for the appellant he has pointed out that there was quarrel between the accused and the deceased in the afternoon and P.W.8 in his evidence has stated that the deceased Subbiah and the accused were making wordy quarrel and he and one Pandy advised them not to make quarrel and separated them. He has further admitted that the deceased Subbiah came to toddy and taken the same. Due to the State of being drunk he only picked up quarrel with the accused. In the cross-examination the Doctor has specifically admitted that the injury on the deceased must have been caused prior to 5 p.m. on 26.3.1985. He has also further admitted that there is a possibility of surviving the injuries if he was given treatment within one hour and by stopping the excessive bleeding and transfusion of blood. In the present case, even though the injured has received the blow, immediate medical treatment was not given to him. P.W.I has stated that he has given first aid and band-aid and took him in a cart to the police station. In the police station according to P.W.13 he recorded the statement of P.W.1 which took nearly half an hour. Only thereafter he made arrangement to send the injured to the hospital. If the injured was Immediately given medical aid probably there could have been a chance of his surviving and the Doctor has admitted in the cross-examination that there is a possibility of surviving if he was given immediate medical aid. Since the prosecution witness have taken their own time in taking the injured for medical treatment, we are of the opinion that it may not be proper to convict the accused for an offence under Sec.302, Indian Penal Code. The Sessions Judge has not taken into consideration the admission given by the Doctor in his evidence. Since the prosecution witness have taken their own time in taking the injured for medical treatment, we are of the opinion that it may not be proper to convict the accused for an offence under Sec.302, Indian Penal Code. The Sessions Judge has not taken into consideration the admission given by the Doctor in his evidence. Hence after re-assessing the entire evidence we are of the opinion that the Sessions Judge was not justified in convicting the accused under Sec.302, Indian Penal Code. 12. Accordingly set aside the conviction under Sec.302, I.P.C. Instead we convict him under Sec.304, Part I, I.P.C. and sentence him to undergo rigorous imprisonment for seven years. With the above modification this appeal is disposed of. If the appellant is on bail he has to surrender before the trial court to under go the remaining period of sentence.