JUDGMENT: The first accused in S.C.No.51 of 1995 on the file of the Sessions Judge, Nilgiris is the appellant. This appeal is directed against the Judgment dated 27.3.1997, in which the appellant/1st accused was convicted for offence under Sec.304(I), Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years. By the same judgment, the second accused, wife of the first accused was acquitted. 2. The case of the prosecution could be stated thus: The deceased along with his daughter, P.W.2, grandson P.W.1, was residing at Kaspara, Nelliyalam Village. A-2 is another daughter of the deceased. A-1 is the husband of A-2.15 years prior to the occurrence, deceased gave half acre of land to A-2. A-2 decided to sell the house property allotted to her, which the deceased opposed. 3. On 17.05.1995, the date of occurrence, the deceased and his grandson P.W.1 were doing agricultural work in the land belonging to one Elisamma, who is another daughter of the deceased. At about 11.45 a.m., A-1 and A-2 came there and questioned as to why they kept the manure in their land for which the deceased replied that he would remove the same immediately. A-2 told that the deceased being an aged man was causing trouble to his family and he was to be finished off. Then P.W.I pacified A-2 and asked her not to quarrel. On hearing the noise, P.W.2 and her sister Elisamma came to the land. When they came near the land, A-1 attacked the deceased with spade M.O.I on his right shoulder saying On sustaining injury, the deceased sat on the ground. The spade broke into two. The broken handle of the spade is M.O.I and M.O.2 is the iron portion of the spade. Thereafter, A-2 again attacked the deceased on his head with wooden log M.O.3 which was found lying there. On sustaining the injury the deceased fell down. After threatening the witnesses A-1 and A-2 went away from the scene of occurrence. Thereafter, P.W.1 and P.W.2 gave water to the deceased but the same was not consumed by him. 4.Registration of the case: Thereafter P.W.1 proceeded to Pattavayal where he gave complaint Ex.P-1 to Village Administrative Officer, P.W.3 at about 1.00 p.m. P.W.3 recorded the statement given by P.W.1, read it over and obtained his signature. Thereafter, P.W.1 and P.W.2 gave water to the deceased but the same was not consumed by him. 4.Registration of the case: Thereafter P.W.1 proceeded to Pattavayal where he gave complaint Ex.P-1 to Village Administrative Officer, P.W.3 at about 1.00 p.m. P.W.3 recorded the statement given by P.W.1, read it over and obtained his signature. Thereafter, P.W.3 sent P.W. 1 and his assistant to Ambalamoola police station along with Ex.P-1 and Ex.P-2 is the report. On 17.05.1995, on receipt of Ex.P-1, Ex.P-2 from P.W.1, P.W.7 registered the case under Secs.302 and 506(ii), Indian Penal Code in Crime No.48 of 1995 and prepared Ex.P-8 First Information Report and sent it to the higher officials and to the Court through P.W.5, constable, at about 4 p.m. P.W.5, handed over Ex.P-9, First Information Report to Gudalur Magistrate at his residence on 17.05.1995 at about 10 p.m. 5.Investigation: P.W.9, Inspector of Police, Ambalamoola Police Station on receipt of information at about 3 p.m., proceeded to the place of occurrence, prepared observation Mahazar Ex.P-3 in the presence of P.W.3, Village Administrative Officer, and drew rough sketch Ex.P-11. Thereafter, he conducted inquest on the body of the deceased. Ex.P-1 is the Inquest Report. Thereafter, he sent the body for postmortem under requisition Ex.P-6 through P.W.4 constable. 6. P.W.6, Doctor, attached to the Government Hosptial Gudalore, conducted postmortem on 18.5.1995 at about 10 a.m. He found two abrasions on right side, back right heel and one lacerated injury on the head. He opined that the deceased would have died due to injury on brain, leading to intra-cerebral haemorrhage and causing injury to vital centre of brain. Ex.P-9 is the postmortem report. 7. Mean while, on 17.5.1995 at about 9.30 p.m., P.W.9 Inspector seized M.O.I handle of the spade and M.O.2 iron portion of the spade under Mahazar Ex.P-4. Thereafter, seized M.O.3 wooden log under Mahazar Ex.P-5. On 17.5.1995 at about 1.15 a.m. P.W.9 arrested A-2 at Pattavayal village and remanded her to judicial custody. After completing the investigation, P.W.9 filed charge sheet on 28.7.1995. 8. To substantiate the charges, in the trial Court, P.W.1 to P.W.9 were examined. Ex.P-1 to Ex.P-12 were marked. M.O.1 to M.O.6 were remanded to the Court. The accused were questioned about the incriminating circumstances and evidence, under Sec.313, Crl.P.C. The accused 1 and 2 denied all of them. After completing the investigation, P.W.9 filed charge sheet on 28.7.1995. 8. To substantiate the charges, in the trial Court, P.W.1 to P.W.9 were examined. Ex.P-1 to Ex.P-12 were marked. M.O.1 to M.O.6 were remanded to the Court. The accused were questioned about the incriminating circumstances and evidence, under Sec.313, Crl.P.C. The accused 1 and 2 denied all of them. The accused set forth the defence that the deceased Mathai alias Kunjukutti came in an aggressive mood to attack the accused and that to prevent any possible attack, A-1 had only pushed down the deceased and that no criminal liability could be fastened to the accused. Rejecting the defence and accepting the evidence of P.Ws. 1 and 2, the trial Court found that the prosecution has established that the appellant/1st accused caused fatal injuries to the deceased on the head and on the right shoulder. The appellant/1st accused was proved to be responsible for causing homicidal death of the deceased Mathai. However, considering the circumstances that the death was caused in a spur of moment, the appellant/1st accused was acquitted of offence under Sec.302, Indian Penal Code, but convicted under Sec.304(1), Indian Penal Code as aforesaid in paragraph no. 1. The second accused, wife of the first accused was acquitted of the charge. 9. Assailing the findings of the trial Court and drawing the attention of the Court to the earlier complaint filed by A-2 on 22.4.1995, the learned counsel for the appellant/1st accused submitted that the trial Court has not properly appreciated the evidence. Laying emphasis upon the previous enmity on the enjoyment of the land and pendency of the civil suit filed by A-2 in O.S.No.64 of 1995, the learned counsel submitted that the trial Court has failed to take note of the injunction order in favour of the accused and that the deceased party came in aggressive mood and dumped manure in the disputed land. The defence plea is that only to prevent any possible attack, A-1 reacted in private defence, which aspect was not properly considered by the trial Court. 10. Pointing out that the accused are inimical towards the deceased party on enjoyment of the land and that the prosecution has convincingly proved that A-2 has intentionally caused injury to the deceased, the learned Government Advocate (Criminal side), Mr.A.N.Thambidurai advanced arguments supporting the findings of the trial Court. 10. Pointing out that the accused are inimical towards the deceased party on enjoyment of the land and that the prosecution has convincingly proved that A-2 has intentionally caused injury to the deceased, the learned Government Advocate (Criminal side), Mr.A.N.Thambidurai advanced arguments supporting the findings of the trial Court. It is further submitted that the evidence of the eye witnesses P.Ws. 1 and 2 clearly brings out the overt act of A-1, which was rightly accepted by the trial Court and that the conviction under Sec.304(1), Indian Penal Code is to be maintained and that there is no reason warranting interference in the verdict of conviction. 11. Upon consideration of the Judgment of the trial Court, evidence of the witnesses, other materials on record and submissions of both sides, the following points arise for consideration in this appeal: (i) In the light of evidence, whether the defence plea set forth by the accused on the availability of the self defence is acceptable? and, (ii) Whether the finding of guilt and conviction of the appellant/1st accused under Sec.304(I), Indian Penal Code warrants any interference? Though the deceased Mathai is the father of A-2, there was no love-lost between them. They were seriously entangled in a land dispute on enjoyment of half acre of land in S.No.37/1 in Nelliapalam Village. Ex.P-10 is the petition and relevant file before Ambalamoola police station containing the details of the dispute. The deceased Mathai had settled half acre of land in S.No.31/1 in Nelliapalam Village in favour of his daughter Leela (A-2) in the year 1982 by Registered Settlement deed. A-2 Leela had entered into an agreement of sale with one Mary John for selling the above property by an agreement of sale in or about April, 1995. 12. Since the land was gifted to A-2 for her enjoyment, her proposal to sell the same to Mary John and the agreement of sale was not to the liking of the family members. The proposal to sell the land caused ripple among the family members, resulting in the lodging of the complaint before Ambalamoola Police Station by A-2 on 22.04.1995, alleging that her father and others are preventing her from enjoying the property. A-2 Leela has also filed a civil suit in O.S.No.64 of 1995 on the file of the District Munsif Court Gudalur. That suit was filed against deceased Mathai; P.W.2 Thangammal and one Augustine. A-2 Leela has also filed a civil suit in O.S.No.64 of 1995 on the file of the District Munsif Court Gudalur. That suit was filed against deceased Mathai; P.W.2 Thangammal and one Augustine. Filing of the civil suit has further deepened the differences between the parties. 13. Hardly there is any action without motive. The previous enmity on the enjoyment of the land, filing of the civil suit and lodging of the complaint before the police was the impelling force for the occurrence on 17.5.1995. By the evidence of P.W.1 and P.W.2 and by adducing the documentary evidence, Ex.P-10, prosecution has successfully brought out the previous enmity and motive. Existence of previous enmity satisfies the judicial mind on the probability of the occurrence and the credibility of the prosecution case. 14. In their evidence P.W. 1 and P.W.2 have consistently spoken about the occurrence on 17.5.1995. While the deceased and P.W.1 were doing agricultural work in the land of Elisamma, who is another daughter of the deceased, A-1 and A-2 came there, questioning as to how they could keep manure in the disputed land. Saying that the deceased, being aged man, is responsible for the trouble in the family, A-1 attacked the deceased with a spade, M.O.I, on his right shoulder. The spade had broke into two pieces. From the evidence of P.Ws.1 and 2, it is further made clear that even after the deceased had sat on the ground, A-2 attacked the deceased with a wooden log M.O.3 which was lying there. On sustaining injuries, the deceased fell down and swooned. The overt act of the accused in attacking the deceased with M.O.1 spade (blade portion) on the right shoulder and attacking on the head of the deceased with M.O.3 wooden log is well brought out by the evidence of P.W.I and P.W.2. During cross examination, nothing substantial is brought out to doubt their version. Their evidence remains unimpeachable in character. 15. The evidence of P.Ws. 1 and 2 is amply corroborated by the objective findings during investigation: (i) by seizure of M.O.1 to M.O.3, spade and handle and the wooden log; (ii) the body being found in the land of Elisamma with bleeding injuries. Prompt registration of First Information Report also lends assurance to the prosecution case. 15. The evidence of P.Ws. 1 and 2 is amply corroborated by the objective findings during investigation: (i) by seizure of M.O.1 to M.O.3, spade and handle and the wooden log; (ii) the body being found in the land of Elisamma with bleeding injuries. Prompt registration of First Information Report also lends assurance to the prosecution case. For the occurrence at 11.30 a.m., complaint was lodged before Ambala-moola police station at 1 p.m. No doubt in the cross- examination, P.W.1 as stated that even before they went to the police station, A-2 was present in Ambalamoola police station. Presence of A-2 in the police station would not in any way advance the defence plea. Perhaps after causing the fatal injuries, to wriggle out of the situation, A-2 might have rushed to the police station. The point urged on the presence of A-2 in the police station even before P.W.1 went there, does not in any way weaken the prosecution case nor does it advance the defence plea. 16. The oral evidence of P.Ws.1 and 2 is also further strengthened by the injuries noted on the person of the deceased. P.W.6, Dr.Chandrababu has noted the following injuries: (1) Abrasion and contusion over the right scapula. (2) Abrasion above right heel. (3) Dried blood in the anal region present. (4) Contusion and laceration over the vertex of the skull. Dried blood over the laceration. Injury no.4 has caused the skull bone fracture involving the left and right parietal lobe below suture line. P.W.6 opined that the deceased died of brain injury and the intra-cerebral haemorrhage. In the light of the medical evidence, version of P.Ws. 1 and 2 remains unassailable. 17. In the disputed land, there is a house bearing door No.4/241-A. The defence plea is that the accused came from Kerala and when they went to their house, they found it to be locked. Further case of the accused is that on seeing the accused, the deceased, P.W.1, P.W.2, Augustine and Elisamma came there with weapons and picked up a quarrel and to prevent any possible attack, A-2 pushed down the deceased who fell down and that the appellant/1st accused is not responsible for the death of the deceased. Further defence plea is that on the date of occurrence, the deceased and prosecution witnesses have deliberately violated the injunction order and trespassed into the land. Further defence plea is that on the date of occurrence, the deceased and prosecution witnesses have deliberately violated the injunction order and trespassed into the land. In this regard, reliance is placed upon the feature - dumping of manure, noted during investigation. This defence plea is neither substantiated by evidence nor by the objective findings during the investigation. From Ex.P-3, observation Mahazar, it is seen that the disputed land and the lands of Elisamma and other lands are situated adjacent. The adjacent land of Elisamma was reclaimed for cultivation of ginger. For reclamation and raising of ginger crops in that land, the deceased and his party might have brought and kept the manure. Keeping of manure does not in any way lead to the conclusion of trespass, muchless that the deceased party came in an aggressive mood and that A-1 acted in self defence in protection of his property. The defence plea set forth by the accused has no substance and was rightly rejected by the trial Court. 18. Prosecution has proved that appellant/1st accused is responsible for the homicidal death of deceased Mathai. Finding that the fatal injuries were caused in a spur of a moment and that there was no pre-plan or design, the appellant/ 1st accused was convicted under Sec.304(1), Indian Penal Code. The deceased was aged about 64 years. The appellant/ 1st accused has caused injury on the right shoulder with M.O.I spade. From Ex.P-4, seizure Mahazar, it is clear that M.O.I spade with handle measures 92 cms. Strike with M.O.I spade was so forcible that after the first blow, the blade portion of M.O.I spade was broken into two pieces. The deceased was shell shocked and sat down. But the appellant/1st accused would not leave him. With the wooden log found thereon, he struck another blow on the head, causing injuries to the brain, which proved fatal. The second blow was heavy, causing the skull bone fracture and the following internal injuries: Below skin flap blood clot black in colour. 6" x 5" above the left parietal region of the skull extending above 1" to the right parietal bone. ‘L’ shaped fracture of the left parietal bone along the suture line of the skull. On opening the dura matter Blood oozing out from the Brain in the parietal region of both sides. 6" x 5" above the left parietal region of the skull extending above 1" to the right parietal bone. ‘L’ shaped fracture of the left parietal bone along the suture line of the skull. On opening the dura matter Blood oozing out from the Brain in the parietal region of both sides. Laceration of Bran substance about 2” in diameter involving the left and right parietal lobe below the suture line. Nature of injury to the brain clearly shows the heavy blow struck on the head of the aged man. Intention of the appellant/1st accused to cause death could be gathered from the weapon he used (spade and wooden log) and the vital organ of the body to which injury was caused and the force with which it was wielded. 19. Sec.304, Part-I, Indian Penal Code applies where the accused causes bodily injury with intention to cause death; or with intention to cause bodily injury, as is likely to cause death. Intention of the appellant to cause such bodily injury which is likely to cause death is clear from the nature of the injury. Considering the nature of injury and the situs of attack, the learned Sessions Judge has rightly inferred the intention of the appellant and convicted him under Sec.304(I), Indian Penal Code. The appellant/ 1st accused was awarded Rigorous Imprisonment for seven years. The appellant/1st accused had furiously dealt with an aged man. Considering the nature of injury and the manner of attack, the sentence of imprisonment of seven years cannot be said to be harsh or disproportionate. The points urged by the defence are not substantial to upset the verdict of conviction. Finding of guilt, conviction and the sentence of imprisonment are to be confirmed. 20. The judgment of Sessions Judge, Udagamandalam made in S.C.No.51 of 1995 (dated 27.3.1997), convicting the appellant/1st accused under Sec.304(I), Indian Penal Code and the sentence of imprisonment are confirmed and this appeal is dismissed. 21. As the accused is in bail, the trial Court is directed to secure the custody of the appellant/ 1st accused and make him undergo the remaining part of the sentence. 22. In the result, the appeal is dismissed.