Judgment :- M.KARPAGAVINAYAGAM, J. Nagappan, A2, was convicted and sentenced for the offences under Sections 302 and 324, I.P.C. Challenging the same, this appeal has been filed. 2. Originally, both the appellant Nagappan (A2) and one Selvam (A1) were charged for the offences under Section 302 read with 34 and 324 read with 34, I.P.C. Since A1, during the course of trial, died, the charge as against Selvam got abated. So, the trial was conducted only against the appellant A2. 3. The case of the prosecution, in brief, is as follows: (a) The deceased Kamaludeen is a lorry owner. He is residing along with his wife (P.W.1), son (P.W.2) and his daughter. The accused 1 and 2 are brothers. They are also residing in the same area. (b) About six months prior to the occurrence, while P.W.2 Yusuf, the son of the deceased, was driving the jeep, the mud water in the road got splashed on the face of the sister-in-law of A2 Nagappan. A quarrel was ensued. In the said quarrel, Nagappan slapped on the face of P.W.2. From then onwards, there is a misunderstanding between the two families. (c) The occurrence took place on 27.12.1996. It was about 5.45 p.m. when P.W.1 Fathima Beevi and her daughter were sitting at the pial of the house and chit-chatting. At that time, the deceased Kamaludeen came to the house in a motor bike, and on seeing his wife (P.W.1) and his daughter sitting outside the house, he abused them in a filthy language. A1 Selvam and A2 Nagappan, who were living in the same street at about 45 feet away from the house of the deceased, mistook that the deceased abused them indirectly. Then, both of them came near to him and questioned him as to how he could abuse them. The deceased gave a blow on A2. There was a wordy quarrel between them. The accused were pushed back up to their house by the deceased, who was continuously abusing them. At that time, A1 and A2 went inside the house and came with iron pipe and knife respectively. A1 Selvam beat with iron pipe on the head of the deceased. The deceased fell down. A2 also, with the knife M.O.2, cut on the mouth of the deceased. On hearing the noise, P.Ws.1 and 2 came to the rescue of the deceased. A1 Selvam beat with iron pipe on the head of the deceased. The deceased fell down. A2 also, with the knife M.O.2, cut on the mouth of the deceased. On hearing the noise, P.Ws.1 and 2 came to the rescue of the deceased. When P.W.2 tried to ward off the attack, A2, with the knife, cut on the head of P.W.2. Thereupon, A1 hit with iron pipe on the left eye-brow of the deceased. P.W.1 shouted. On seeing the arrival of P.W.3 Ismail, the brother of the deceased and Mariam Beevi, the sister of the deceased, both the accused ran away with the weapons. (d) The deceased was immediately taken to the Stanley Medical Hospital at about 7.20 p.m. P.W.6, doctor, admitted the victim deceased at 7.20 p.m. and issued the Accident Register Ex.P4. At about 8.20 p.m., P.W.2 got admitted in the hospital. P.W.6, doctor, treated him and issued Accident Register Ex.P5. The deceased, despite the treatment, died by about 10.10 p.m. Therefore, P.W.7, doctor, sent the death intimation (Ex.P6) to the police. (e) P.W.1, thereafter, went to the Solavaram Police Station and gave a complaint (Ex.P1) to P.W.9, Sub Inspector of Police at about 11.45 p.m. on the same day. P.W.9 registered the complaint Ex.P1 for the offence under Section 302, I.P.C. and sent a copy of the First Information Report and the complaint to the Court and to the superior Officer. (f) P.W.10, Inspector of Police, on receipt of a copy of the First Information Report, took up investigation. He went to the scene of occurrence at about 12.30 in the mid night. He prepared the Observation Mahazar Ex.P2 and Sketch Ex.P11. He recovered M.O.6 (blood stained earth), M.O.7 (sample earth) and M.O.5 (Spectacles) in Ex.P3. Then, he came to the hospital the next day morning and conducted inquest on the dead body of the deceased. He examined P.Ws.1, 2 and 3 and Mariam Beevi. Thereafter, he sent the dead body of the deceased with a requisition (Ex.P8) to the Doctor (P.W.8) for post-mortem. (g) P.W.8, doctor, conducted post-mortem on the body of the deceased on 28.12.1996 at about 2.30 p.m. She noticed the injuries viz., two lacerated wounds and one incised wound. She opined in the post mortem certificate Ex.P9 that the deceased would appear to have died out of shock and haemorrhage due to the multiple injuries sustained. (g) P.W.8, doctor, conducted post-mortem on the body of the deceased on 28.12.1996 at about 2.30 p.m. She noticed the injuries viz., two lacerated wounds and one incised wound. She opined in the post mortem certificate Ex.P9 that the deceased would appear to have died out of shock and haemorrhage due to the multiple injuries sustained. (h) On 30.12.1996 at about 3.00 p.m., P.W.10, Inspector of Police, arrested A1 (Selvam) and A2 (Nagapan) and obtained their confessional statement (Ex.P19). He seized M.O.1 (iron pipe) and M.O.2 (knife) under the mahazar (Ex.P20). Thereafter, he arranged through Court to send the material objects for chemical examination. After observing all the formalities, P.W.10 Inspector of Police, completed the investigation and filed the charge sheet against A2 alone. A1 Selvam died even before the framing of the charge. Therefore, trial was conducted only as against A2 Nagappan. (i) During the course of trial, on the side of the prosecution, ten witnesses were examined as P.Ws.1 to 10, twenty two exhibits were filed as Ex.1 to 22 and seven material objects were marked as M.Os.1 to 7. On the side of the defence, Ex.D1 was marked. (j) The accused, when called upon under Section 313, Cr.P.C., simply denied his complicity in the crime. 4. The trial Court, on appraisal of the evidence available on record, found the accused guilty of the offence under Section 302, I.P.C. and sentenced him thereunder. 5 Challenging the said impugned judgment of conviction, Mr.R.Margabandhu, learned counsel appearing for the appellant, would submit the following: (a) The evidence of P.Ws.1, 2 and 3, who are eye-witnesses, cannot be relied upon, as the same are not in consonance with Ex.P1 Complaint and Ex.P4 Accident Register respectively. (b) Even though P.W.1 would state that the neighbourers witnessed the occurrence, those neighbourers have not been examined. Even though the occurrence took place at 5.45 p.m., the complaint was lodged only at 11.45 p.m. (c) P.W.2 had gone to his aunt's (rpj;jp) house to inform about the incident and there is no reason as to why he has not gone to the police station to inform about the incident. (d) According to P.W.10, Inspector of Police, M.O.2 (knife) was recovered from A1 on 30.12.1996. (d) According to P.W.10, Inspector of Police, M.O.2 (knife) was recovered from A1 on 30.12.1996. P.W.1, in her cross-examination, has admitted that M.O.1 (iron pipe) and M.O.2 (knife) were shown to her on the same day of occurrence, namely, 27.12.1996 night, and therefore, the recovery is doubtful. (e) Even according to the prosecution, the deceased went to the house of the accused and attacked A2, and therefore, the act committed by the accused is only in exercise of his self-defence. Therefore, at the most, the accused would be liable to be convicted only for a lesser sentence and not under Section 302, I.P.C. 6. In reply to these submissions, Mr.E.Raja, Additional Public Prosecutor, points out various portions of the evidence and contends that there are acceptable materials to conclude that the accused alone had committed the offence of murder. He would further state that Ex.D1 relates to the occurrence which took place at about 5.30 p.m. on 27.12.1996; and the incident in question took place at 5.45 p.m., and as such, Ex.D1 cannot be taken into consideration to conclude that the accused exercised the right of private defence, and hence, the impugned judgment is liable to be confirmed. 7. We have carefully considered the submissions made by both the parties and perused the entire records. 8. According to the prosecution, at about 5.30 p.m. on 27.12.1996, the deceased came back to his house in a motor bike and on noticing that his wife (P.W.1) and his matured young daughter were sitting at the pial of the house just opposite to the house of the accused, the deceased scolded them in a filthy language, asking them as to why should they sit outside. Both the accused, who were available at that time, took it that he was abusing them indirectly. Therefore, they came near the deceased and questioned him. The deceased retaliated telling them that he had not abused them but only his wife and daughter. So saying, the deceased slapped on A2. Both the parties indulged in a quarrel. Then, the deceased went up to the house of the accused and abused them. Then, both A1 and A2 went inside the house, brought M.O.1 (iron pipe) and M.O.2 (knife) and both of them attacked the deceased. This occurrence was witnessed by P.Ws. 1 to 3. So saying, the deceased slapped on A2. Both the parties indulged in a quarrel. Then, the deceased went up to the house of the accused and abused them. Then, both A1 and A2 went inside the house, brought M.O.1 (iron pipe) and M.O.2 (knife) and both of them attacked the deceased. This occurrence was witnessed by P.Ws. 1 to 3. It is contended that P.W.3 would not have seen the occurrence, as he is residing in Gandhi Nagar. It is stated that in Ex.P4 it is mentioned that the deceased was attacked by only one person, who is a known person, with a knife and as such, the case of the prosecution cannot be said to be true. On going through Ex.P4, it is seen that the deceased was attacked by a known person with a knife. But the Doctor would state in his evidence that the said statement given by P.W.3 Ismail, who brought the deceased to the hospital. Though the question has not been put to P.W.3 Ismail with reference to this, it could be taken that P.W.3 told him that one person attacked with knife on the deceased. P.W.6 Doctor would state that P.W.3 Ismail only gave such statement. As he is not the eye-witness, we need not give much more importance to the evidence of P.W.3. Thus, there is no valid ground to reject the evidence of P.Ws.1 and 2, who, in our view, are natural and reliable witnesses. 9. It is a matter of fact that P.W.2 is an injured witness. According to P.Ws.1 and 2, they went and cried aloud when the deceased was attacked, and when P.W.2 intervened, he was attacked by P.W.2 with a knife. P.W.6, the Doctor who treated both the deceased and P.W.2, and P.W.8, the Doctor who conducted the post-mortem, would give the particulars of injuries, which would clearly corroborate with the evidence of P.Ws.1 and 2. It is true that P.W.1 would state that the neighbourers have also seen the occurrence. Even assuming that some neighbourers have seen the occurrence, the non-examination of those neighbourers would not affect the credibility of the evidence of P.Ws.1 and 2, even though they are related to the deceased, since their evidence are otherwise reliable. 10. Much was said about the delay. In our view, the delay has been clearly explained. Even assuming that some neighbourers have seen the occurrence, the non-examination of those neighbourers would not affect the credibility of the evidence of P.Ws.1 and 2, even though they are related to the deceased, since their evidence are otherwise reliable. 10. Much was said about the delay. In our view, the delay has been clearly explained. When the deceased was attacked, the relatives of the deceased would only be interested in saving the life of the deceased. Therefore, the deceased was immediately taken to the Stanley Medical Hospital, where he was admitted by the Doctor P.W.5. Despite the treatment, the deceased died at 10.10 p.m. Then the intimation was sent to the police. P.W.1, thereafter, went to the Solavaram Police Station and gave the complaint (Ex.P1) to P.W.9, Sub Inspector of Police at about 11.45 p.m. on the same day, mentioning this incident in the complaint. 11. There is a specific reference about the injuries sustained by the deceased as well as by P.W.2. This complaint has been received by the Magistrate at 7.30 a.m. on 28.12.1996. It is true that P.W.1 would admit that the M.O.1 (iron pipe) and M.O.2 (knife) were shown to her on 27.12.1996, viz., the same day. This is purely a mistake, because, according to P.W.10, Inspector of Police, the accused were arrested on 30.12.1996, and on that day, on their confession, M.O.1 and M.O.2 were recovered and the same were sent for chemical examination thereafter. In respect of this aspect, admittedly, there is no cross-examination to P.W.10. Under those circumstances, we cannot disbelieve the evidence of P.W.10 who stated that the accused were arrested on 30.12.1996 and only thereafter the weapons were recovered. 12. Though A1 died, the doctor would state that injuries 2, 3 and 4 are sufficient to cause the death of the deceased in the ordinary course of nature, taking into account the gravity of injury No.2, which has been caused with M.O.2 (knife). Under those circumstances, we have no hesitation in holding that the prosecution has established the case beyond reasonable doubt. 13. However, the question which remains for consideration is whether the offence committed by A2 will come under Section 302, I.P.C. In that context, as pointed out by the Additional Public Prosecutor, we can take into consideration Ex.D1 also. Under those circumstances, we have no hesitation in holding that the prosecution has established the case beyond reasonable doubt. 13. However, the question which remains for consideration is whether the offence committed by A2 will come under Section 302, I.P.C. In that context, as pointed out by the Additional Public Prosecutor, we can take into consideration Ex.D1 also. As per Ex.D1, at about 5.30 p.m. on 27.12.1996, the deceased went near the house of the accused and attacked the sister of the accused, namely, Mariammal. Thus, the deceased has not only attacked the sister of the accused earlier but also made the accused think that he had abused them in a filthy language indirectly. So, this would indicate that the earlier occurrence took place at 5.30 p.m. when the deceased had gone to the house of the accused and caused injury on the sister of the accused. Further, even as admitted by P.W.1, when the deceased was abusing his wife and daughter, the accused thought that they were being insulted and came and objected. At that time also, the deceased beat A2 Nagappan. Not only that. The deceased, thereupon, got down from the bike and there was a quarrel, and in that quarrel, both have indulged in the exchange of words. This only made the accused to go inside the house to take the weapons and attack the deceased. Thus, it is clear that the occurrence had taken place not only in a sudden quarrel, but also out of a sudden and grave provocation. Since the deceased abused them, the accused were made to take the weapons and thereupon, attack the deceased. In view of the above fact situation, we are of the view that the offence would not fall under Section 302, I.P.C., but would fall only under Section 304 Part I, I.P.C., and consequently, the conviction under Section 302, I.P.C. is set aside and instead the appellant is convicted under Section 304 Part I, I.P.C. The conviction of the lower Court is modified to the above extent and the appellant is sentenced to undergo rigorous imprisonment for a period of seven years for the said offence. Since the accused is already in prison, he is sentenced to undergo the remaining period of sentence. With the above observation, this appeal is dismissed.