Judgment :- R.Banumathi, J. Appellant is the Accused in S.C.No.92 of 1992 on the file of Additional Sessions Court (Fast Track Court), Namakkal. This Appeal is directed against the Judgment (dated 13.11.2002), convicting the Accused under Sec.302 I.P.C (causing Murder of Deceased-Raman); and under Sec.307 I.P.C (attempting on the life of P.W.1-Ponnan) and sentencing him to undergo Life Imprisonment and Five years Rigorous Imprisonment (ordered to run concurrently). For the Conviction under Sec.302 I.P.C, learned Sessions Judge also imposed fine of Rs.1000/-. 2. Deceased-Raman is the Nephew of P.W.1-Ponnan. They are related to each other. Case of Prosecution is that the Accused is a Drunkard and leading a wavered life and the Accused used to frequently demand money from the Deceased. Further case of Prosecution is that on 09.01.2002 – 03.00 p.m, near the house of P.W.12-Pazhanal (Mother of Deceased – Raman) the Accused came there and demanded money from the Deceased. When the Deceased refused to pay any amount, angered over the same, the Accused with the intention of committing the Murder, inflicted two cut injuries on his Head. 3. When P.W.1 tried to intervene, the Accused caught hold of P.W.1 and also inflicted cut injuries on him with Koduval on his Right backside, Right side Chest. The occurrence was witnessed by P.Ws.2 to 4 and P.W.12-Pazhanal. 4. Injured P.W.1-Ponnan and Raman were taken to Erdoe Government Hospital. P.W.9-Dr.Ramasamy, the Duty Doctor has examined the Deceased-Raman. He has noted two Incised Wound over the Right Side Scalp. Ex.P.6 is the Accident Register. P.W.9 has also examined P.W.1 and noted the Incised Wound on his Right Arm, Right Side Scapula and the Dorsum of Right Wrist; and on the Left Side Neck. Ex.P.7 is the Accident Register of P.W.1. 5. Since the condition of Raman was serious, he was taken to a Private Hospital – Senthil Neurology and Neuro Surgery Hospital for better management and treatment. P.W.10-Dr.Selvaperumal has treated him in the Hospital. 6. On receipt of intimation, P.W.15-Head Constable of Nallur Police Station went to the Hospital and recorded the Statement of P.W.1 under Ex.P.1. On the basis of Ex.P.1, P.W.15-Head Constable has registered the case in Crime No.25 of 2002 under Sections 307 and 324 I.P.C under Ex.P.15-F.I.R. 7. P.W.18-Sub Inspector of Police had taken up the Investigation. Scene of occurrence – house of Pazhanal was inspected in the presence of Witnesses. On the basis of Ex.P.1, P.W.15-Head Constable has registered the case in Crime No.25 of 2002 under Sections 307 and 324 I.P.C under Ex.P.15-F.I.R. 7. P.W.18-Sub Inspector of Police had taken up the Investigation. Scene of occurrence – house of Pazhanal was inspected in the presence of Witnesses. Ex.P.2-Observation Mahazar and Ex.P.21-Rough Plan were prepared on the scene of occurrence. P.W.18 had examined the Deceased-Raman and recorded his Statement under Ex.P.22. 8. The Accused was arrested on 10.01.2002 – 06.00 p.m at Sikkalandur Bus Stop. His Confession Statement led to the recovery of M.O.1-Koduval, under Ex.P.5-Mahazar, which was hidden in Thorny Bush. The Accused was remanded to judicial custody. 9. Injured-Raman, who was taking treatment in the private hospital succumbed to the Injuries on 12.01.2002 – 07.00 a.m. On receipt of death intimation from the Private Hospital, P.W.18 altered the case into Sections 302 and 324 I.P.C under Ex.P.24 – Express Report. 10. After the case was altered, P.W.18 had taken up the further Investigation. Witnesses were examined in the presence of Panchayatars and Inquest was held on the body of the Deceased-Raman. M.O.2-Blood stained clothes of P.W.1 were also recovered. After the Inquest, the body was sent to Autopsy. 11. P.W.11-Dr.Sathasivam has conducted the Autopsy on the body of the Deceased-Raman. P.W.11 issued Ex.P.12-Post Mortem Certificate. On completion of the material part of the Investigation, P.W.15-Inspector of Police has filed the Charge Sheet against the Accused punishable under Sections 302 and 307 I.P.C. 12. To bring home the guilt of the Accused, the Prosecution has examined P.Ws.1 to 19 and marked Exs.P.1 to 24. M.Os.1 to 7 were produced before the Court. The Accused was questioned under Sec.313 Crl.P.C about the incriminating evidence and circumstance against him. The Accused has filed a detailed statement in writing, denying the Prosecution case. According to the Accused, the Deceased-Raman has teased his Widowed Daughter and the Accused had questioned the conduct of the Deceased-Raman and at that time, Raman has caused cut injuries on the Head of the Accused. The Accused acted in self-defence to protect himself from further attack and to save his life attacked the Deceased. It is further case of the Accused that the blows inflicted on him by the Deceased-Raman had fallen on the Left Arm and Shoulder of P.W.1 and that that the Accused is not responsible for the injuries sustained by P.W.1. The Accused acted in self-defence to protect himself from further attack and to save his life attacked the Deceased. It is further case of the Accused that the blows inflicted on him by the Deceased-Raman had fallen on the Left Arm and Shoulder of P.W.1 and that that the Accused is not responsible for the injuries sustained by P.W.1. Denying the arrest on 10.01.2002, the Accused stated that he had been taken to the Police custody on 09.01.2002 and that a false case has been foisted against him. 13. In consideration of the evidence, learned Sessions Judge rejected the defence version. It was found that P.W.1-Ponnan being injured witness, his evidence stands on higher footing. Learned Sessions Judge has rejected the defence version that the Accused attacked Raman in exercise of his right of Private Defence. Finding that the guilt of the Accused is well established by the evidence of P.Ws.1 and 12 is well corroborated by the Medical Evidence, the Trial Court has convicted the Apellant / Accused as aforesaid in para (1). 14. Attacking the Prosecution case and the verdict of conviction, it is mainly contended that in not explaining the injuries on the person of the Accused, the Prosecution has suppressed the real occurrence. It is further contended that the earlier report recorded from P.W.1 is suppressed. Contending that there is substantial variation regarding the scene of occurrence, case of prosecution is assailed for its credibility. Taking us through the Statement filed by the Accused during questioning under Sec.313 Crl.P.C, learned counsel for the Appellant / Accused has submitted that the defence plea set forth by the Accused is more probable and the Trial Court erred in not properly appreciating the same. In any event, it is contended that in the sudden quarrel, the Accused has not intended to cause the death of Deceased-Raman and that the act of the Accused is punishable only for a lesser offence – Culpable Homicide not amounting to Murder. 15. Submitting that the Accused is addicted to drinks and is in the habit of demanding money, learned Additional Public Prosecutor has submitted that case of Prosection revolves around the injured witness P.W.1 which stands on higher footing. 15. Submitting that the Accused is addicted to drinks and is in the habit of demanding money, learned Additional Public Prosecutor has submitted that case of Prosection revolves around the injured witness P.W.1 which stands on higher footing. Learned Additional Public Prosecutor urged that there is no material evidencing that the Accused sustained injuries and in that view of the matter, non explanation of injuries said to have been sustained by the Accused would not be fatal to the Prosecution case and prays to sustain the conviction. 16. We have carefully considered the submissions of both sides, impugned Judgment, evidence and materials on record. In such consideration, the point that arises for our consideration is whether the Conviction of the Appellant / Accused under Sec.302 I.P.C for committing the Murder of Raman suffers from any infirmity? 17. Kondarasampalayam Panchayat Mud Road is the East West Road. In Arunthathiyar street, house of Raman and P.W.12-Pazhanal are adjacent; on the Southern Side of Panchayat Mud Road. On the Western Side is the North South Komarasamy Kadu Cart Track. House of the Accused is on the Western Side of the said Cart Track- shown as Sl.No.7 in Ex.P.-21-Rough Plan. Case of Prosecution is that on 09.01.2002 – 03.00 p.m, the Accused went to the house of P.W.12-Pazhanal asking for Rs.50/- for purchase of Liquor. When Raman has not paid the money, angered over the same, the Accused attacked Raman with M.O.1-Koduval on the Head. When P.W.1 tried to intervene, the Accused held him and also inflicted cut injuries on his Right backside, Right Chest with Koduval. Overt act of the Accused in causing the injuries to Deceased-Raman and P.W.1 is well brought out by the cogent and consistent evidence of P.Ws.1 and 2. 18. There could be no denial that P.W.1 is the Injured Eye Witness. That P.W.1 sustained injuries is also well corroborated by the Medical Evidence – Ex.P.7-Accident Register, wherein P.W.9 has noted the Incised Wound over the Scapula, Dorsum of Right Wrist; Left side Neck. Pattern of the injuries i.e. on the Right Arm and the Right Wrist are defensive evidencing that P.W.1 went to the rescue of Raman. Evidence of P.W.1 on the occurrence that the Accused attacked the Deceased on the Head is credible and acceptable. Very cogent and convincing grounds are required to discard the testimony of the Injured Witness. 19. Pattern of the injuries i.e. on the Right Arm and the Right Wrist are defensive evidencing that P.W.1 went to the rescue of Raman. Evidence of P.W.1 on the occurrence that the Accused attacked the Deceased on the Head is credible and acceptable. Very cogent and convincing grounds are required to discard the testimony of the Injured Witness. 19. However, we are of the view that there is no Inflexible Rule that the evidence of the Injured is to be mechanically accepted as truthful version. In facts and circumstances of the case, if required, like in any other case, it has to be tested for its probability and creditworthiness. We may point out one strong reason for testing the veracity of P.W.1 Injured Witness in this case. 20. During the questioning under Sec.313 Crl.P.C, the Accused had taken the defence plea that the Prosecution has suppressed the real occurrence. By filing elaborate statement in writing, the Accused has denied having the habit of drinks. According to the Accused, the Deceased-Raman had teased his Widowed Daughter and the Accused had questioned Raman about his conduct. Angered over the same, Raman firstly inflicted cut wound on the Accused. The blows aimed at the Accused by Deceased-Raman accidentaly fell upon P.W.1. Further case of the Accused is that he acted in self-defence and had taken the same Koduval from his Cycle Carrier and cut Raman twice on his Head. Denying the arrest on 10.01.2002, the Accused had stated that he was taken to custody even on 09.01.2002. 21. Neither in Ex.P.1 nor in the evidence, the Injury to the Accused is explained. Hence, onbehalf of the Accused, it is contended that the Accused acted in protection of himself and that he exceeded his limits and on behalf of the Accused, it is prayed that the act committed by the Accused is punishable only with lesser offence. 22. We may straight away point out that either in Ex.P.1 or in the evidence, no explanation is forthcoming about the injuries sustained by the Accused. In his evidence, P.W.15-Head Constable has admitted that the Accused had sustained Head Injuries, but not sent to the Hospital. P.W.18 Investigating Officer who arrested the Accused on 10.01.2002 has examined the Accused. In his Confession Statement, though the Accused stated about his Head injuries, but the Accused was not sent to the Hospital for treatment. In his evidence, P.W.15-Head Constable has admitted that the Accused had sustained Head Injuries, but not sent to the Hospital. P.W.18 Investigating Officer who arrested the Accused on 10.01.2002 has examined the Accused. In his Confession Statement, though the Accused stated about his Head injuries, but the Accused was not sent to the Hospital for treatment. P.W.18 has explained away the same stating that the Accused has not complained of any injuries. When a person has sustained Head injuries, it is quite improbable that he would not have complained about the pain. By not sending the Accused to the Hospital, the Prosecution appears to be not setting forth the true version that the Accused also sustained the Injuries. 23. In a situation like this, when the Prosecution fails to explain the injuries on the person of an Accused, depending on the facts of each case, any one of the three results may follow:- i.That the Accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence. ii.It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable dout. iii.It does not affect the Prosecution case at all. Question is in which category the present case falls? {Vide THE STATE OF GUJARAT..VS.. BAI FATIMA (A.I.R.1975 S.C. 1478)} 24. Mere non explanation of Injuries on the person of the Accused by the Prosecution does not ipso facto in all cases be termed as not representing the truthful version or not giving the gist of the case. But, non explanation of the injuries on the Accused assumes greater significance when the evidence consists of interested witnesses or where the defence gives a version which competes in probability with that of the prosecution. 25. From the evidence and materials on record, it is to be seen whether the Accused intended to cause the death of Raman or the defence version set forth by the Accused competes in probability with the Prosecution case. 26. Admittedly, the Accused sustained Head injuries, for which the Prosecution has not offered any explanation. 25. From the evidence and materials on record, it is to be seen whether the Accused intended to cause the death of Raman or the defence version set forth by the Accused competes in probability with the Prosecution case. 26. Admittedly, the Accused sustained Head injuries, for which the Prosecution has not offered any explanation. It cannot be laid down as a principle of Universal application that as soon as it is established that the Accused received the injuries in the same transaction, the plea of private defence would stand established and that the burden would shift to the Prosecution to prove that those injuries were caused in self-defence. 27. Case of Prosecution is mainly attacked on the ground of variation in the scene of occurrence. It is contended that P.Ws.1 and 12 have stated in their evidence that the scene of occurrence is inside the house of P.W.12, but no blood was detected in the sample earth seized. It is further submitted that as per M.Os.5 and 6-Photographs, the scene of occurrence is in the street and that P.W.1 has stated that he sustained injury infront of Raman's House and such variation throws doubt upon the manner in which, the Prosecution has given the genesis of the occurrence. By perusal of M.O.5-Photographs, we find that the house of P.W.12 is a small hut with (piol) outside. The occurrence is just infront of the house where the blood is found to be splattered which is flashed in the photographs. Nodoubt, in Ex.P.21-Rough Plan, the scene of occurrence is mentioned as inside the house. But, it is only a manner of mention by the Investigating Officer. Scene of occurrence being infront of the Hut of P.W.12; we find no material difference in the scene of occurrence. 28. From the above, it is obvious that the scene of occurrence is the house of P.W.12-Pazhanal and the Accused went there. Admittedly, Accused had Widowed Daughter-Parameswari. Case of the Accused is that the Deceased-had teased her and to ask about the same, he went there. The Accused is aged about 50 years. As an aged Father, teasing of his Daughter might have caused pain to the Accused. The defence set forth by the Accused seems to be probable. 29. When both the Prosecution and the Defence do not set forth correct version, the Court should reconstitute the occurrence by pursuing the situation. The Accused is aged about 50 years. As an aged Father, teasing of his Daughter might have caused pain to the Accused. The defence set forth by the Accused seems to be probable. 29. When both the Prosecution and the Defence do not set forth correct version, the Court should reconstitute the occurrence by pursuing the situation. As an aged Father, the Accused might have been overwhelmed with agony and anger. In all probability, the Accused questioning the conduct of Raman might have caused injuries to him. Though the Accused pleads that he acted in self-defence, it is not supported by any evidence. Questioning the conduct of Deceased-Raman about teasing his Daughter, the Accused inflicted two cut injuries on his Head, which has caused the Internal Injuries. (1)Fracture of the Right Parietal Bone (2)Longitudinal Fracture extending from the Fracture No.1 to the occiput. (3)Fracture extending for the occiput to the Right Ear. Fracture of the Scalp with Contusion suggests that the Accused has forcibly wielded the weapon, inflicted deep cut injuries. Obviously, the Accused intended to cause that injury which is likely to cause the death. But, it cannot be said to be deliberate act of Murder. Hence, we find that the act of the Accused would fall only under Sec.304(1) I.P.C and not under Sec.302 I.P.C. 30. In consideration of the nature of injuries sustained, inflicted on the Deceased and the weapon and other circumstances, we find that the reduction of period of sentence of Seven years would meet the ends of justice. P.W.1 has tried to rescue Raman, during which course, he sustained injuries. Hence, we confirm the conviction of the Appellant / Accused under Sec.307 I.P.C and the sentence of Imprisonment of Five years imposed upon the Appellant. C.A.No.1703 of 2002:- The Conviction of the Appellant / Accused in S.C.No.92 of 1992 by the Judgment (dated 13.11.2002) of the learned Additional Sessions Judge, Namakkal under Sec.302 I.P.C is modified to one under Sec.304(1) I.P.C and the Appellant / Accused is directed to undergo Rigorous Imprisonment for Seven years. The Conviction and Sentence imposed under Sec.307 I.P.C are confirmed and this Appeal is allowed partly as indicated above.