Judgment : M. KARPAGAVINAYAGAM, J. ( 1 ) CHALLENGING the conviction for the offence under section 302, I. P. C. and sentence to undergo life imprisonment, Ramachandran the appellant herein, who is arrayed as Al has filed this appeal before this court. ( 2 ) THE minimal facts which are required for the disposal of this appeal are as follows: (a) The deceased Ganesan is a Civil Engineer. P. W. 4 Kannan is the younger brother of the deceased. He was working as an Assistant in a private nursing home of Dr. Karunakaran at Sencottai. One Sivakami, the sister of the appellant/accused was married to the said Dr. Karunakaran. One Karupayee, the mother of the appellant did not like P. W. 4 Kannan working in the nursing home of her son-in-law. Therefore, she used to scold the family members of P. W. 4. The deceased, witnesses and accused all were residing in the village Viswanathaperi. The deceased Ganesan went to the house of the accused and questioned Karupayee as to why she scolded P. W. 4 and his family members. At that time, also the said Karu payee scolded the deceased and his relatives. (b) From that day onwards, there was a wordy quarrel between the family members of the deceased and the family members of the said Karupayee. On the date of occurrence, that is, on 9-1-1987 at about 8. 00 A. M. the said Karupayee came near the house of P. W. 1, who is the brother of the deceased, in order to throw out the unwanted things into the dustbin and began to scold P. W. 1. However, P. W. 1 kept quiet. At about 5. 30 P. M. when the said Karu payee was standing near the house of one Meera. P. W. 1 went near her and questioned as to why she was scolding his family members all the time. In retaliation. Karupayee by putting her hand at his chest pushed him on the floor. P. W. 1 got up and threatened that at about 8. 00 P. M. his brother, the deceased Ganesan, would come to the village and that they would definitely give a police complaint against her. This is the motive alleged by the prosecution for the main occurrence that took place at about 7. 30 P. M. on the same day. (c) On 9-1- 1987, at about 8. 00 P. M. his brother, the deceased Ganesan, would come to the village and that they would definitely give a police complaint against her. This is the motive alleged by the prosecution for the main occurrence that took place at about 7. 30 P. M. on the same day. (c) On 9-1- 1987, at about 8. 30 P. M. near the bus stop at Viswanathperi, the deceased Ganesan after getting down from the bus was talking with P. W. 2 Muniyandi. At that point of time, the appellant Ramachandran and his father (A2) suddenly appeared in the scene with a stick and attacked the deceased. The appellant gave a single blow on the head and A2, father of the appellant attacked on the left shoulder. (d) After hitting him, they ran away from the place of occurrence. P. W. 1 came to the scene at that time. He chased after the appellant and managed to snatch the stick from him. However, wriggling out of the grip from P. W. 1, Al and A2 took to their heels and escaped. (e) The victim Ganesan went to the Police station at Sivagiri and gave a complaint to P. W. 11 Head Constable and the same registered by P. W. 13 in Crime No. 16/87 for the offence under Section 325, I. P. C. The printed FIR is Ex. P-12. (f) Then, the victim was sent to the Government Hospital Sivagiri along with the police memo, after arranging for the sending of the documents Exs. P-ll and P-12 to the court and the higher officials. P. W. 7 Doctor attached to the Sivagiri Government Hospital on seeing those injuries on the victim referred to him to Sankarankoil hospital, since there was no proper facility in the hospital. (g) Thereafter, the victim accompanied by P. W. 1 went to the Sankarapkoil hospital and met Doctor P. W. 8. P. W. 8 after examining the victim issued the accident Register Ex. P-3. (h) From the said hospital, he was again referred to the Tiruneveli Medical College Hospital, since he found that the injuries sustained by the victim were of grievous in nature. The victim, thereafter, came to the Tirunelveli Hospital and he was admitted in the casualty ward. In spite of the treatment, on 10-1-1987 at about 4. 10 A. M. he died at the hospital. Therefore, P. W. 9 Dr. The victim, thereafter, came to the Tirunelveli Hospital and he was admitted in the casualty ward. In spite of the treatment, on 10-1-1987 at about 4. 10 A. M. he died at the hospital. Therefore, P. W. 9 Dr. Murugesan sent the death intimation Ex. P-4 to the police. (i) In the meantime, P. W. 13 after registering the F. I. R. for the offence under Section 325, I. P. C. went to the scene on the same day night and prepared the observation mahazar, rough sketch, etc. , (j) On 10-1-1987 at about 8. 00 A. M. P. W. 13 received the death intimation and altered the F. I. R. into the offence under Section 302, I. P. C. Ex. P-14 is the express report. P. W. 15, the Inspector of Police, on getting the news about alteration of the F. I. R. into 302, I. P. C. , went to the hospital and took up further investigation. He conducted inquest between 12. 45 and 4. 00 P. M. Ex. P-is is the inquest report. He examined P. Ws. 1 to 3 during the inquest. Then he sent the dead body for post-mortem along with Ex. P-S requisition. (k) P. W. 10 Dr. Balakrishnan conducted autopsy over the dead body of the deceased on 11-1-1987 at about 10. 30 A. M. and noted two injuries. One injury was found on the right parietal region and the another injury was lacerated injury on the back side of the left knee joint. He issued post-mortem certificate Ex. P-6. (I) P. W. 15 the Inspector of Police seized M. O. 1 stick from P. W. ls house on 11-1-1987. Thereafter, he came to know that the appellant and A2 surrendered before the Judicial Magistrate at Usilampatti. He sent M. Os. for chemical analysis through court. After completing investigation, he filed charge sheet before the Judicial Magistrate, Sankarankoil on 18-2-1987, who in turn committed the case to the Sessions Court. ( 3 ) DURING the course of trial the prosecution examined P. Ws. 1 to 15. filed Exs. P-I to P-is and marked M. Os. 1 to 5. on the side of the prosecution. After the prosecution side is closed the appellant and the second accused were questioned under Section 313, Cr. ( 3 ) DURING the course of trial the prosecution examined P. Ws. 1 to 15. filed Exs. P-I to P-is and marked M. Os. 1 to 5. on the side of the prosecution. After the prosecution side is closed the appellant and the second accused were questioned under Section 313, Cr. P. C. Both of them denied their complicity in the offence and stated that a false case was foisted against them in order to spoil the life of the first accused who was studying at the law college at that time. ( 4 ) ON consideration of the entire materials, the trial court concluded that the offence was not proved as against A2 and acquitted him in respect of the offence under Sections 302 read with 34. I. P. C. However, the appellant is found guilty for the offence under Section 302, I. P. C. and he was sentenced to undergo life imprisonment. As against this verdict, the present appeal has been preferred before this Court. ( 5 ) MR. Shanmugavelayutham, the learned counsel for the appellant would submit that the prosecution has not placed the acceptable materials so as to base the conviction on the appellant for the offence under Section 302 I. P. C. and that the trial court ought to have acquitted the appellant in view of the fact that the materials as against A2 were disbelieved by the trial court. ( 6 ) PER contra. Mr. N. R. Elango, the learned Government Advocate would submit that the evidence of P. Ws. 1 and 2. which is amply corroborated by the medical evidence let in through P. Ws. 7, 8, 9 and 10, would clearly prove the case of the prosecution and apart from these materials, the complaint given by the deceased which has to be treated as a dying declaration after the death of the victim since the victim who had given the statement died thereafter, also would give clear details inconsonance with the evidence of P. Ws. 1 and 2. at least in respect of the appellant. ( 7 ) TO put it briefly, the learned Government Advocate would submit that the finding given by the trial court is perfectly justified and proper and it does not warrant any interference by this court. ( 8 ) IN the instant case, there are two eye-witnesses. 1 and 2. at least in respect of the appellant. ( 7 ) TO put it briefly, the learned Government Advocate would submit that the finding given by the trial court is perfectly justified and proper and it does not warrant any interference by this court. ( 8 ) IN the instant case, there are two eye-witnesses. P. W. 1 is none other than the brother of the deceased. P. W. 2 is an independent witness who is the local resident. Both of them would uniformly say that at the time of occurrence, the appellant came to the scene with stick and gave a blow on the head of the deceased and ran away. According to the counsel for the appellant, there is no direct motive for the accused to attack the deceased, since the material placed by the prosecution would only go to show that there was a misunderstanding between one Karupayee and one P. W. 1 and as such, in the absence of clear details about the motive the evidence of P. Ws. 1 and 2 cannot be accepted. ( 9 ) WE are not able to accept this contention because the real motive is that on the date of occurrence in the morning as well as in the evening there was a quarrel between P. W. 1 and the mother of the appellant. When the mother of the appellant manhandled P. W. 1. he challenged that the deceased Ganesan would come to the village at about 8. 00 P. M. and that both of them would give a police complaint against her. This occurrence had taken place at 5. 00 P. M. , whereas the main occurrence has taken place at the bus stop at 8. 30 P. M. ( 10 ) ACCORDING to the evidence of witnesses the deceased went to Madras and came back to the village and he was just getting down from the bus and talking to P. W. 2. P. W. 1 went to the bus stop in order to receive the deceased. At that time, it is stated that Al and A2 came to the place of occurrence and assaulted the deceased. P. W. 1 went to the bus stop in order to receive the deceased. At that time, it is stated that Al and A2 came to the place of occurrence and assaulted the deceased. Therefore, the aspect of the motive in our view, is established, since the appellant had come to the scene in order to attack the deceased because of the earlier quarrel between P. W. 1, the brother of the deceased and the mother of the appellant. ( 11 ) ON going through the evidence of P. Ws. 1 and 2 coupled with Ex. P. 11 the statement given by the deceased to the Police of are of the view that the prosecution has proved its case by placing the materials through the ocular testimony corroborated by the medical testimony that the injury was inflicted on the head of the deceased only at the hands of the appellant. The mere acquittal of A2 would not absolve the appellant from the charge for the offence under Section 302. I. P. c. ( 12 ) NO doubt it is true that in Ex. P-11 the statement given by the victim it is stated that both A1 and A2 attacked. But the letter portion of Ex. P 11 would reveal that the appellant alone caused the injuries on the deceased by hitting upon the head by means of stick. Moreover. P. W. 2 who is an independent witness who belongs to some other caste would categorically state that the appellant came to the place of occurrence with the stick and caused a single blow on the head of the deceased and ran away. ( 13 ) THEREFORE, in view of lack of sufficient materials as against A2, the trial court has correctly acquitted him and that acquittal will not in any way help the appellant inasmuch as there are ample materials through these witnesses that the appellant alone was the perpetrator of the offence with which he was charged. Therefore, there is no difficulty in coming to the conclusion that, the materials placed by the prosecution are acceptable and believable, in order to hold that the appellant alone inflicted injury on the head of the deceased, which resulted in his death. ( 14 ) NOW, the question which remains to be considered is whether the act committed by the appellant would come under any of the clause of Section 300. ( 14 ) NOW, the question which remains to be considered is whether the act committed by the appellant would come under any of the clause of Section 300. I. P. C. , so as to attract the punishment under Section 302. I. P. C. ( 15 ) THE contention of the learned counsel for the appellant is that the, entire materials even though accepted to be true would not certainly attract the offence under Section 302. I. P. C. , since the prosecution has not let in adequate evidence to show that it would come under any of the clause of Section 300, I. P. C. ( 16 ) ON the other hand. Mr. Elango, the learned Government Advocate, would submit that the part played by the appellant would definitely cover t under Clause (3) of Section 300. I. P. C. Clause thirdly of Section 300 is as follows:section 300. Murder: except in the cases hereinafter excepted culpable homicide is murder if the act by which the death is caused is S done with the intention of causing death, or-Thirdly:- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. T ( 17 ) THE clause thirdly of Section 300, I. P. C. postulates that the injury in question needs to satisfy two tests to attract the said clause and those tests are: (1) The injury must be sufficient in the ordinary course of nature to cause death; (2) Such injury must be intended to be caused by the culprit. ( 18 ) WE have to see, whether the prosecution did satisfy these two tests in the prelent case?. ( 19 ) ACCORDING to the learned counsel for the appellant, there is no material from the evidence of Doctor P. W. 10 that this injury is sufficient in the ordinary course of nature to cause death. The reading of the evidence of Doctor P. W. 10 would reveal that he only stated that the injury would be sufficient to cause death. There is no wording with reference to the ordinary course of nature. The reading of the evidence of Doctor P. W. 10 would reveal that he only stated that the injury would be sufficient to cause death. There is no wording with reference to the ordinary course of nature. As regards the second test, the prosecution has to establish that the injury which is sufficient in the ordinary course of nature to cause death, had been intended by the accused, while inflicting that injury. ( 20 ) IN the instant case, the deceased was beaten by the appellant at about 8. 30 P. M. From Viswanathaperi, the deceased had gone to the police station at Sivagiri which is at a considerable distance, by bus. At about 9 P. M. , the deceased reached the police station and he himself wrote the complaint on a paper and handed it over to P. W. 13 and thereafter, he was sent to Sivagiri hospital where admittedly, no treatment was given to him and from there, he was sent to Sankarankoil hospital. There also, the evidence of P. W. 8 would show that no treatment was given to the victim. He was examined at about 23. 20 mid-night at Sankarankoil hospital. Thereafter, he was sent to the hospital at Tirunelveli. In the casualty ward, he died at 4. 10 A. M. on 10-1-1987. ( 21 ) THE evidence of P. Ws. 1 and 13 would show that he was conscious throughout till he came to Sankarankoil. Thereafter, he became unconscious. From Sankarankoil, he was taken to Tirunelveli Medical College Hospital where he was admitted. In fact, the Doctor who admitted him in the hospital had not been examined. There is no material as to whether any treatment had been given to the deceased. P. W. 10 the Post-mortem Doctor would clearly admit that the deceased would have been saved immediate treatment had been given. This thing would show that the deceased even though sustained injury on the head at about 8. 30 P. M. on 9-1-1987, he died only next day early morning at 4. 10 A. M. and there is no material to show that any treatment was given to him in Tirunelveli hospital, wherein he was admitted. This thing would show that the deceased even though sustained injury on the head at about 8. 30 P. M. on 9-1-1987, he died only next day early morning at 4. 10 A. M. and there is no material to show that any treatment was given to him in Tirunelveli hospital, wherein he was admitted. ( 22 ) IN the light of this factor, we have to consider whether the second test namely, the injury which is said to be sufficient to cause the death in the ordinary course of nature was intended by the accused while causing such an injury as held by this court as well as the Apex Court. The intention has to be gathered from various circumstances. ( 23 ) IN order to find out the said intention, we have to see the nature of the weapon used, the part of the body on which the injury was inflated, the nature of the injury and other circumstances leading to death. ( 24 ) NO doubt, it is true that according to the prosecution, the appellant came to the scene place with the weapon namely, the stick. But, it shall be noticed that the appellant gave a single hit on the head of the deceased and did run away. It is also seen from the evidence, as indicated earlier, that after the injury being inflicted on the head the victim want to the police station alone in a bus and thereafter to the Sivagiri hospital and then to Sankarankoil hospital. During all these hours, he was conscious. ( 25 ) IN order to decide the point of issue that articles in this case, it is proper to quote the observation made by the Apex Court in the decision in Kishore Singh v. State of M. P. The following is the observation: the distinction between culpable homicide (Section 299, I. P. C.) and murder (Section 300, I. P. C.) has always to be carefully borne in mind while dealing with a charge under section 302, I. P. C. Under the category of unlawful homicides fall both cases of culpable homicide amounting to murder and those not amount to murder. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300, I. P. C. But even though none of the said five exceptions are pleaded or prima-facie established on the evidence on record, the prosecution must still be required under the law to bring the ca under any of the clauses Section 300. I. P. C. to sustain the charge of murder. If prosecution fails to discharge this onus in establishing one of the four clauses Section 300, I. P. C. , namely firstly to fourthly, the charge murder would not be made on and the case may be one culpable homicide not amounting to murder as described under Section 299, I. P. C. ( 26 ) YET another observation made by the Apex Court in the decision State of A. P. v. Rayavarapu Punnay is as follows: in clause (3) of Section 300 instead of the words likely to cause death occurring in the corresponding clause (b) Section 299, the words sufficient in the ordinary course nature have been used. Obviously, the distinction lie between a bodily injury like, to cause death and a bodily injury sufficient in the or nary course, of nature cause death. The distinction is fine but real, and, if over looked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree probability of death result in from the intended bodily injury. To put it more broadly, is the degree of probability of death which determines whether a culpable homicide is the gravest, medium or the lowest degree. The worn likely in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words bodily injury sufficient in the ordinary course of nature to cause death mean that death will be the most probable result to the injury having regard to the ordinary course of nature. ( 27 ) IN the light of these observation, we have to see whether the death that was caused in this case was the most probable result of the injury intended and inflicted by the appellant. ( 27 ) IN the light of these observation, we have to see whether the death that was caused in this case was the most probable result of the injury intended and inflicted by the appellant. In view of the evidence of P. W. 10 Doctor stating that the deceased would have survived if timely treatment was given and the lack of materials to show that at least any treatment was given to the deceased till his death and the failure to examine the Doctor who admitted the deceased in the Tirunelveli Medical College Hospital would clearly show that it cannot be said that the death of the deceased at 4. 10 A. M. on 10-1-1987 was caused as a result of the single injury caused by means of a stick by the appellant at about 7. 30 P. M. on the previous day at the scene place. ( 28 ) THE learned Government Advocate would vehemently contend on the strength of the above decision that if the stick has been used and the deceased died out of the stick injuries the offence would come under Section 302. I. P. C. But, in our view the facts of that case would not apply to the present case. That is the case where the accused beat the deceased repeatedly by stick all over the body and caused 19 injuries and out of the 19 injuries, 9 injuries were found to be grievous. Therefore, the intention which is the main ingredient for the offence under Section 302. I. P. C. Is apparent from the fact that the deceased was brutally attacked indiscriminately by the accused in that case. ( 29 ) THAT is not the case here. In this case, the appellant came with a stick and gave a hit on the head of the deceased and ran away from the place. The deceased himself narrated the same in the complaint given to the police station and thereafter, he was taken to the different hospitals. Ultimately. The died at 4. 10 A. M. next day. These things would show that the appellant could not have intended to cause injury causing death. The deceased himself narrated the same in the complaint given to the police station and thereafter, he was taken to the different hospitals. Ultimately. The died at 4. 10 A. M. next day. These things would show that the appellant could not have intended to cause injury causing death. At the most he could have interned to cause the injury which is likely to cause death in view of the fact that he gave a strong hit on the head it could be held that he inflicted that the intention to cause death attracting Section 299 (b ). I. P. C. ( 30 ) THE Doctor P. W. 10 found while conducting post-mortem that 2. 2 x 1 cm lacerated injury right parietal region bone deep. Therefore, it could be inferred from the nature of this injury that the appellant had intended to cause injury which is likely to cause death. Therefore, in our view, the appellant is liable to be convicted under Section 304 Part-I. I. P. C. instead of under Section 302. I. P. C. ( 31 ) IN the result the conviction and sentence imposed upon the appellant under Section 302 I. P. C. are set aside. Instead the appellant is convicted for the offence under Section 304 Part-I. I. P. C. and sentenced to undergo R. I. for 7 years. With this modification the appeal is dismissed. The trial court is directed to take steps to commit the accused to judicial custody to undergo the remaining period of sentence. The bail bond if any executed by the appellant stands cancelled. Appeal allowed partly.