JUDGMENT: Pitchai, the appellant herein, was tried for the offence under Sec.302, I.P.C., for the allegations that on 27.3.1993 at 9.30 a.m. at Alambadi Village, he beat with iron pipe twice on the head of Veerambal and when she fell down he again beat on her right shoulder due to which the deceased died at 9.50 p.m. on 30.3.1993. 2. After trial, the learned Principal Sessions Judge, Trichy, acquitted the appellant in respect of the charge under Sec.302, I.P.C. but, found him guilty for the offence under Sec.304(11), I.P.C. and sentenced him to undergo rigorous imprisonment for 5 years. Hence, this appeal before this Court. 3. The case of the prosecution in brief is as follows: (a) The deceased Veerambal is the resident of Alambadi Village. P.W.1 Sekar is his son. P.W.2 Malarkodi is her daughter. Pitchai, the appellant, is also the resident of the same village. The lands of Veerambal and Pitchai are situate adjacent to each other. (b) On 27.3.1993, P.W.1 Sekar, went to his field, Kokilambal, the mother of the appellant, began to scold him stating that he was the person who let out water from her tank. P.W.1 told that he did not do the same. (c) After some time, P.W.1 left the field and proceeded towards his house. On the way, his mother Veerambal the deceased and his sister Malarkodi (P.W.2) were coming in the opposite direction. (d) At that point of time, the appellant came with M.O.2 Iron pipe towards them. When the deceased Veerambal questioned the accused as to why he picked up quarrel with his son, the appellant beat with M.O.2 twice on her head and again punched with the same pipe on her left cheek. As a result, the deceased swooned and fell down. Again the appellant beat her with the weapon on the right shoulder of the deceased. P.Ws.1 and 2 raised noise. The appellant ran away from the scene with the weapon. (e) Since the deceased was found lying with bleeding injuries, P.W.1 took his baniyan and tied around her head and thereafter, P.W.1 took her to hospital at Perambalur. From there, the deceased was referred to Trichy hospital. On receipt of information, P.W.9 the Head Constable went to the Hospital and recorded the statement from P.W.1. (e) Since the deceased was found lying with bleeding injuries, P.W.1 took his baniyan and tied around her head and thereafter, P.W.1 took her to hospital at Perambalur. From there, the deceased was referred to Trichy hospital. On receipt of information, P.W.9 the Head Constable went to the Hospital and recorded the statement from P.W.1. This was registered in Crime No.143 of 1993 under Sec.326, I.P.C. Thereafter, P.W.9 went to the scene and prepared the sketch and observation mahazar. He also recovered the blood stained cloth. Ex.P-1 is the complaint and Ex.P-9 is the printed first information report (f) P.W.3 doctor attached to the Government General Hospital, Perambalur examined the victim and issued accident register Ex.P-2 and referred the victim to the Trichy Hospital. P.W.12 the Sub Inspector of Police took up investigation. (g) On 30.3.1993, P.W.12 received information about the death of the deceased. Therefore, P.W.13 Inspector of Police sent the altered first information report for the offence under Sec.302,I.P.C. and took up further investigation. He conducted inquest and examined P.Ws.1, 2 and others. The inquest report is Ex.P-11. (h) On the request of P.W.13 post-mortem was conducted by P.W.4 Dr.Anita attached to the Government Hospital, Trichy and she found several injuries including the fracture in the hand. She opined that the injuries found on the head are fatal and she issued postmortem certificate Ex.P-3. (i) On 3.4.1993, P.W.13 arrested the appellant and recovered M.O.2 m pursuance of his confession Ex.P-6. Thereafter, all the blood stained articles and the weapons were sent for analysts. After completing the investigation, he filed the charge-sheet under Sec.302, I.P.C. (j) After examination of the witnesses, the accused was questioned in regard to the statement of the witnesses and he stated that the deceased Veerambal and her son P.W.1 beat his mother with stick and while he was preventing the same, Veerambal fell on a stone and sustained injuries. (k) The trial Court on the basis of the materials available on record, concluded that the appellant is liable to be convicted for the offence under Sec.304(II), I.P.C. and sentenced him to undergo rigorous imprisonment for 5 years. 4. (k) The trial Court on the basis of the materials available on record, concluded that the appellant is liable to be convicted for the offence under Sec.304(II), I.P.C. and sentenced him to undergo rigorous imprisonment for 5 years. 4. The learned counsel for the appellant, while challenging the conviction and sentence would submit that the trial Court failed to consider the contradiction between the evidence of P.W.1 and P.W.2 with regard to M.O.2, the prosecution has suppressed the counter complaint given by the accused and the injury sustained by the mother of the accused, the Doctor P.W.3 would admit in the cross-examination that the mother of the appellant came to hospital at 8.40 p.m. on 27.3.1993 and he gave treatment to her and issued Ex.D-1 accident register; the Doctor also had stated in Ex.D-1 that she was alleged to have been beaten by stick by known person at about 7.00 a.m. in her field and as such, these materials have not been taken note by the trial Court and consequently, the finding that the appellant is guilty for the offence under Sec.304(II), I.P.C. is wrong and the same is liable to be set aside. At the end, the counsel for the appellant would request this Court to consider for reduction of sentence. 5. On the other hand, the learned Government Advocate would submit that the finding given by the trial Court is correct, in view of the unassailable materials available on record. 6. I have carefully considered the contentions raised by the counsel for. both the parties. 7. On going through the evidence oral and documentary, I am of the considered opinion that the deposition given by P.Ws.1 and 2 being eye witnesses would not suffer from any infirmity, inasmuch as the said oral evidence had been fully corroborated by the medical evidence adduced by P.Ws.3 and 4. 8. Furthermore, the testimony of P.Ws.1 and 2 is consistent with the earlier version given by P.W.1 in the first information report. The occurence took place at 9.30 a.m. Immediately, the deceased was taken to Perambalur hospital. She was admitted at 10.05 a.m. thereafter, she was referred to Trichy Hospital. 9. 8. Furthermore, the testimony of P.Ws.1 and 2 is consistent with the earlier version given by P.W.1 in the first information report. The occurence took place at 9.30 a.m. Immediately, the deceased was taken to Perambalur hospital. She was admitted at 10.05 a.m. thereafter, she was referred to Trichy Hospital. 9. On receipt of intimation, the Head Constable P.W.9 went to Trichy Hospital and recorded the statement of P.W.1 at 2.00 p.m. He came to the station and registered the same at 4.00 p.m. and immediately despatched the printed first information report to the Court. The earliest records, Ex.P-1 the first information report and Ex.P-2 the accident register issued by P.W.3 Doctor would clearly show that the occurrence had taken place at 9.30 a.m. On 27.3.1983 in which the deceased was beaten with iron pipe by the appellant. 10. It is true that P.W.1 did not identify the weapon M.O.2. No doubt, he would state that the weapon shown to him in the Court was not brought by the accused to the scene place. However, he would state in his deposition that the iron pipe which the appellant used was bigger than M.O.2, but P.W.2 would correctly identify M.O.2. Therefore, one cannot disbelieve that he did not identify M.O.2 but his consistent version from the beginning is that the deceased was attacked by the accused with iron pipe. 11. As noted above, it was contended that the mother of the appellant was attacked by the deceased, P.W. 1 and P.W.2 and she was treated fro the same by P.W.3 and the same had been suppressed. 12. On going through the evidence of P.Ws.1, 2 and 3, it can be safely concluded that it would not be a suppression, since P.W.3 would state that the mother of the accused came to the hospital at about 8.40 p.m. on 4.3.1993 and gave a statement to the Doctor that she was attacked with stick at 7 a.m. by one known person. 13. Therefore, the occurrence referred to in Ex.D-1 marked through P.W.3 d d not happen, while the incident relating to the attack of the deceased by the appellant took place, since according to the prosecution, the deceased was attacked at 9.00 a.m. When P.W.1 was proceeding towards his house. 14. 13. Therefore, the occurrence referred to in Ex.D-1 marked through P.W.3 d d not happen, while the incident relating to the attack of the deceased by the appellant took place, since according to the prosecution, the deceased was attacked at 9.00 a.m. When P.W.1 was proceeding towards his house. 14. Thus, it is clear that even assuming that some occurrence had taken place in which the mother of the appellant was attacked with stick, the said occurrence could not be said to have taken place during the course of the same transaction and as such, it cannot be said that it is a counter case and the said counter case has been suppressed by the prosecution. 15. In view of what is stated above, I am of the view that the ocular testimony corroborated by the medical testimony tendered in this case would clearly show that the appellant was the culprit and due to the attack made by him, the deceased has fracture on her head which resulted in her death. 16. The trial Court, while concluding that the accused is liable to be convicted for the offence under Sec.304(11), I.P.C. had imposed the sentence of rigorous imprisonment for 5 years. Though, in my view, the reasons for acquitting the accused in respect of the offence under Sec.302, I.P.C., are not correct. I do not propose to disturb the finding in respect of the conviction for the offence under Sec.304(II), I.P.C. since there is no appeal filed by the State. 17. The learned counsel for the appellant would argue on question of sentence. In my view, the sentence of rigorous imprisonment for 5 years for the offence under Sec.304(ii), I.P.C. in the light of the above facts of the case would meet the ends of justice. 18. This is a case where there is a fracture on the head of the deceased. But for the great force used by the appellant with the weapon like iron pipe, these injuries or fracture on the head would not have been caused. At this juncture, it would be relevant to notice the injuries: "(a) Head Scalp - Injuries mentioned previously. (b) Bones: There is cruciate fracture found externally. (i) Antero Posterior fracture extends 10 c.m. above left Eyebrow to the occipital bone and internally to the left side posterior cranial fossa. At this juncture, it would be relevant to notice the injuries: "(a) Head Scalp - Injuries mentioned previously. (b) Bones: There is cruciate fracture found externally. (i) Antero Posterior fracture extends 10 c.m. above left Eyebrow to the occipital bone and internally to the left side posterior cranial fossa. (ii) Traverse fracture extends from the top of the head to the left crosses the first fracture, extends to the inside in left petrous temporal bone, crosses the mid line to the right middle cranial fassa. Length (i) 25 c.m. and fracture No. (ii) 23 cm. (c) Membrances ruptured along the fracture. (d) Brain bedeamatous with a hematoma oozing. The left cerebral hemisphere 1 cm x 7 cm x 10 cm. cause of death injury to vital organ." 19. Since these injuries are very serious and the appellant by taking the weapon like M.O.2 iron pipe had repeatedly attacked on the head of a woman, who was unarmed and even after, she fell down, he attacked on her shoulder, I do not find any reason to reduce the sentence. 20. The counsel for the appellant would cite a decision in Palani Gounder v. State, (1996)1 L.W. (Crl.) 218 and request this Court to hold that the appellant is entitled for remission of sentence under various G.Os. 21. In my view, this is not a case where such a finding is called for. If the appellant is entitled for remission, it is open to him to request the jail authorities concerned. Therefore, this request is also rejected. 22. In view of the above, the appeal is dismissed. The trial Court is directed to take steps to secure the custody of the appellant to undergo the remaining period of sentence.