Judgment :- (This Criminal Appeal has been preferred against the judgment and conviction passed by the Learned Additional District & Sessions Judge – cum- Fast Track Court NO.1 Judge at Tuticorin made in S.C.No.199 of 1999, dated 31.1.2001.) S. Ashok Kumar, J. The appellants are accused in S.C.No.199 of 1999 on the file of the Additional District Judge, (Fast Track Court No.1), Tuticorin. The first appellant was convicted for an offence under section 302 IPC to undergo imprisonment for life and the second appellant was convicted for an offence under Section 302 r/w.34 IPC to undergo rigorous imprisonment for life and under Section 341 IPC to undergo rigorous imprisonment for one month. 2. The brief facts of the case are as follows: - A-1 and A-2 are brothers. P.W.1 is younger brother of A.1. Along with P.W.1, he had 4 other brothers and 4 sisters. P.W.1 had 3 male children and 2 female children. The last child is the deceased Krishnan, aged 7 months at the time of occurrence. About 10 years prior to the date of occurrence i.e., 29.11.1996, P.W.1's father died. Another accused concerned in this case by name Murugan who is also the brother of P.W.1 died before trial. During the life time of the father of P.W.1, P.Ws 1, A.1 and A.2 got married and thereafter two other sisters got married. One Padmini, a sister was not married. On 28.11.1996, in the morning., Murugan and A.1 came to the house of P.W.1 and asked for contribution for making jewels for their sister Padmini. P.W.1 replied "you get my elder brother's share, then I will pay my contribution". The next day, i.e., 29.11.1996 at about 9.00 a.m., A.1 and A.2 and the deceased Murugan came to the house of P.W.1. A.1 was having a stick; A.2 and Murugan were having stones in their hands. P.W.1 came afraid on seeing them. After taking his child, Krishnan in his hands, P.W.1 tried to escape. Then A.2 saying to other accused "kill him by beating" chased P.W.1. P.W.1's wife was running behind them. In front of the house of Mahalinga Nadar, A.2 and deceased Murugan blocked P.W.1. A.1 by saying "you are having 3 male children and your number of male children must be reduced and so saying he beat the child with a casuina stick, M.O.1 on the left side head of the child. P.W.1's wife was running behind them. In front of the house of Mahalinga Nadar, A.2 and deceased Murugan blocked P.W.1. A.1 by saying "you are having 3 male children and your number of male children must be reduced and so saying he beat the child with a casuina stick, M.O.1 on the left side head of the child. When he attempted to beat the child again and again, P.W.1 prevented such assaults. A.1 also assaulted P.W.1 below his left knee. P.W.1 did not want to take immediate action since the accused were brothers. The child was wheezing and after leaving the child to the care of his wife, P.W.1 went to attend his job. P.W.1's wife took the child to a local hospital where it was declared dead. P.W.1 returned from his job in the evening and came to know about the death of the child at 7.00 pm., he lodged a complaint at Nazereth Police Station. The said complaint is Ex.P.1. P.W.13, Head Constable who received Ex.P.1 complaint from P.W.1, registered a case in Crime No.340 of 1996 under sections 341, 323, and 302 IPC and the original printed FIR copy Ex.P.15 was sent to Judicial Magistrate, Tiruchendur and the copies were sent to higher police officials. P.W.14, Inspector of Police visited the place of occurrence at about 7.30 p.m., in the presence of P.W.6 and one Periya Nadar. He also prepared a observation mahazar Ex.P.3 and a Sketch Ex.P.16. On the same day, at 9.30 p.m., in the presence of Panchayatdars he conducted inquest on the body of the deceased child and prepared Ex.P.17 inquest report and arranged to send the body for postmortem. 3. P.W.7, Dr.Pandurangan, conducted autopsy on the body of the deceased on 30.11.1996 at 11.30 a.m., and found the following injuries: - "External Injuries: 1. An abrasion of 1x1 cm on the front of left knee. 2. A diffuse contusion with surrounding swelling on the left and back of face and scalp. Internal Injuries: Hyoid intact. Heart pale with minimal blood clots in all chambers, lungs, liver spleen kidney pale with 50 ml., of white milky fluid. No smell. Small intestine and Bladder pale of empty. Blood clot present in the subarachoid space. Fracture of skull Bone on the left side present running obliquity. R brain normal. Blood clots present under the skull bone spreading over the surface of brain." 4. No smell. Small intestine and Bladder pale of empty. Blood clot present in the subarachoid space. Fracture of skull Bone on the left side present running obliquity. R brain normal. Blood clots present under the skull bone spreading over the surface of brain." 4. The Doctor who has conducted the postmortem has given the opinion that the death was due to shock and haemorrhage due to injury to vital organ (brain). The postmortem certificate issued by P.W.7, Doctor, is Ex.P.6. 5. On 5.12.1996 at about 8.15 a.m., P.W.14, arrested A.1 and deceased Murugan near Vellamadam busstop in the presence of one P.W.8, Karthikeyan and Velnarayanan. A.1 volunteered to give a confession statement, admissible portion of which is Ex.P.7. On the same day on 9.15 a.m., he took the P.W.14 to a garden behind his house where he has hidden the4 M.O.1 Casurina tick and the same was seized under a cover of mahazar Ex.P.8. The material objects seized in the crime were sent for chemical analysis. The chemical examination report is Ex.P.11 and the Serologist's report is Ex.P.12. The final report was laid against the accused for offences under Section 341, 323, 307 and 302 r/w.34 IPC. 6. Before the trial court, P.Ws 1 to 14 were examined as prosecution witnesses and Exs.P.1 to P.18 and M.Os 1 and 2 were marked. On behalf of the accused no witness was examined and no document or material object was produced. When questioned under Section 313 Cr.P.C., with regard to the incriminating circumstances appearing against the accused in the evidence of the prosecution witnesses, the accused denied such evidence as false or not known and contended that it is a false case filed against them. The learned Additional Sessions Judge, on a consideration of the oral and documentary evidence convicted A.1 for an offence under section 302 IPC to undergo imprisonment for life and the convicted A.2 for an offence under Section 302 r/w.34 IPC to undergo rigorous imprisonment for life and also under Section 341 IPC to undergo rigorous imprisonment for one month. Hence, this appeal. 7. The learned counsel for the appellant would contend that the accused have no intention to murder the child because they have no enmity with the child. Hence, this appeal. 7. The learned counsel for the appellant would contend that the accused have no intention to murder the child because they have no enmity with the child. But they wanted to inflict some injury to P.W.1, which might have accidentally fell on the child, resulting the death of the child and in the absence of any intention to cause the death of the child, the offence alleged against the accused cannot be brought under section 302 IPC, but it is only an offence under section 304 Part II IPC. 8. Per contra, the learned Additional Public Prosecutor would contend that the accused A.1 has intentionally caused injury on the child by saying the number of male children of P.W.1 should be reduced and such words would clearly speak about the intention of the accused to commit the murder of the child. The motive for the occurrence is said to be that P.W.1 was evading to give his share of the money for making jewels for the only unmarried sister and in spite of demand by A.2 and another deceased brother Murugan, P.W.1 was evading payment of his share. Further, P.W.1 also has put a condition that unless A.1, his elder brother pays his contribution, he will not pay his share. The motive is not seriously disputed on behalf of the accused. But the learned counsel for the appellant would only say that A.1 and A.2 and the deceased brother Murugan came only to assault P.W.1 that too with a stick and stones. But stones were never used by A.2 or by the deceased Murugan. But, A.1 has attacked P.W.1 with the stick and caused three simple abrasions on his left side skull, right index finger and left leg as seen from Ex.P.2 Accident Register and one such assault might have accidentally fell on the child in the hands of P.W.1 which might have resulted in the death of the child. The further contention of the leaned counsel for the appellants is that the alleged words said to have been used by A.1 while beating P.W.1 that number of male children should be reduced is nothing but the imaginary to attract the offence under Section 302 IPC. 9. The further contention of the leaned counsel for the appellants is that the alleged words said to have been used by A.1 while beating P.W.1 that number of male children should be reduced is nothing but the imaginary to attract the offence under Section 302 IPC. 9. In support of his contention, the learned counsel for the appellant would point out that though the occurrence took place at 9.00 a.m., on 29.11.1996, the complaint was lodged at the Police Station only at 7.00 p.m., on the same day, after a delay of 10 hours. The delayed complaint may give room for embellishment which may be the creature of an after thought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. Had the complaint been given within the reasonable time after the occurrence and such words said to have been used by A.1 are mentioned in the complaint, we can to some extent believe that the words might have been uttered by A.1. But the complaint has been lodged 10 hours later which makes suspicion whether A.1 would have used such words and would have made an attack on the child by using such words. These alleged words said to have been used by A.1 would have been introduced only at a later stage when Ex.P.1 was lodged after a delay of 10 hours. 10. P.W.4, Thavamani has been examined as an independent witness. She has deposed that A.1 hit on the head of the child of P.W.1. P.W.4 has not stated that A.1 uttered any words while attacking the child. The failure of P.W.4 to state that A.1 used any words while attacking the child will only strengthen the contention of the learned counsel for the accused that the words said to have been used by A.1 have been wantonly introduced at a later stage to bring home the offence under Section 302 IPC. 11. In Meharaj Singh Vs. The failure of P.W.4 to state that A.1 used any words while attacking the child will only strengthen the contention of the learned counsel for the accused that the words said to have been used by A.1 have been wantonly introduced at a later stage to bring home the offence under Section 302 IPC. 11. In Meharaj Singh Vs. State of U.P., reported in 1994 SCC (Cri) 1390, the value of FIR and the effect of delay in lodging the FIR has been discussed by Their Lordships of the Supreme Court as follows:- "FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye witnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps n of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the incept report. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the incept report. Even though the inquest report, prepared; under Section 174 CrPC, is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR." 12. In this case also, there was no motive against the child for the accused. The accused wanted to assault P.W.1 because he was not willing to pay his share of contribution for making jewels of the unmarried sister. While attacking P.W.1 by A.1, one assault was felt on the tender child, which resulted in the death of the chid. The intention was not to cause the death of the child, but only to cause injury to P.W.1. It is also quite strange as to why on seeing the accused, P.W.1 went inside the house and took the 7 months old child from the cradle and ran away from the house. Because, before running away from the house, no words against the child alleged to have been uttered by any of the accused. The facts and circumstances of the case would indicate that A.1 and A.2 might have only wanted to cause small injuries on P.W.1. But unfortunately, one assault fell on the head of the small child resulting in the death. 13. As far as A.2 is concerned, he is said to have been armed with a stone. He has not beat either the child or P.W.1 and no specific overt act is attributed as against him and therefore he is entitled to be acquitted. 14. As far as A.1 is concerned, whether he must be punished under Section 302 IPC has to be decided in the circumstances of the case. In 1983 (2) SCC 342 (JAGTAR SINGH V. STATE OF PUNJAB), the Supreme Court has held as follows: - "8.The next question is what offence the appellant is shown to have committed? 14. As far as A.1 is concerned, whether he must be punished under Section 302 IPC has to be decided in the circumstances of the case. In 1983 (2) SCC 342 (JAGTAR SINGH V. STATE OF PUNJAB), the Supreme Court has held as follows: - "8.The next question is what offence the appellant is shown to have committed? In a trivial quarrel the appellant wielded a weapon like a knife. The incident occurred around 1.45 noon. The quarrel was of a trivial nature and even in such a trivial quarrel the appellant wielded a weapon like a knife and landed a blow in the chest. In these circumstances, it is a permissible inference that the appellant at least could be imputed with a knowledge that he was likely to cause an injury which was likely to cause death. Therefore, the appellant is shown to have committed an offence under section 304 Part II of the IPC and a sentence of imprisonment for five years will meet the ends of justice." 15. In 1984 (2) SCC 133 (THOLAN V. STTE OF TAMIL NADU), it has been held as follows: - "12. It is equally not in dispute that appellant gave only one blow with a knife. Appellant had no quarrel or dispute with the deceased Sampat. It is not shown that deceased Sampat had anything to do with the chit organised by K.G.Rajan. No malice has been alleged to have been entertained b the accused towards deceased Sampat. The incident occurred on the spur of the moment. It appears that the house of the deceased Sampat was somewhere near the house in which the organisers or at least one of them was residing. Appellant had his dispute and grievance with the organisers of the chit. It is the prosecution case that the accused abused organisers of the chit. Deceased Sampat is not shown to be the organiser of the chit. Probably when the deceased Sampat told the accused not to misbehave in the prsence of ladies and not to use vulgar and filthy language, the appellant retorted by questioning the authority of Sampat to ask him to leave the place. Presence of Sampat is wholly accidental. Altercation with Sampat was on the spur of the moment, even the meeting was accidental. Presence of Sampat is wholly accidental. Altercation with Sampat was on the spur of the moment, even the meeting was accidental. There arose a situation in which appellant probably misguided by his own egocentric nature objected as to why Sampat should ask him to leave the place and in this background he gave one bow with a knife which landed on the right side chest of the deceased which has proved fatal. Could the appellant be said to have committed murder? In other words, whether Part I or Part III of Section 300, IPC would be attracted in the facts of this case. Even Mr.Rangam learned counsel for the State of Tamil Nadu could not very seriously contend that the appellant intended to commit murder of Sampat. His submission was that at any rate appellant, when he wielded a weapon like a knife and gave a blow on the chest, a vital part of the body, must have intended to cause that particular injury and this injury is objectively found by the medical evidence to be fatal and therefore Part III of Section 300 would be attracted. On this aspect the decisions are legion and it is not necessary to recapitulate them here merely to cover idle parade of familiar knowledge. One can profitably refer to Jagrup Singh V. State of Harayana, Randhir Singh V. State of Punjab, Kulwnat Rai V. State of Punjab and Hari Ram V. State of Haryana. To this list two more cases can be added: Jagtar Singh Vs. State of Punjab and Ram Sunder v. State of U.P. Having regard t the ratio of each of these decisions, we are satisfied that even if Exception I is not attracted, the requisite intention cannot be attributed to the appellant. But in the circumstances herein discussed he wielded a weapon like a knife and therefore he can be attributed with the knowledge that he was likely to cause an injury which was likely to cause death. In such a situation, he would be guilty of committing an offence under Section 304 Part II of the Indian Penal Code. Having regard to the circumstances of the case, a sentence of 5 years would be quite adequate." 16. In AIR 1994 SC 34 (JOSEPH V. State OF KERALA), Their Lordships of the Supreme Court have held thus:- "3. In such a situation, he would be guilty of committing an offence under Section 304 Part II of the Indian Penal Code. Having regard to the circumstances of the case, a sentence of 5 years would be quite adequate." 16. In AIR 1994 SC 34 (JOSEPH V. State OF KERALA), Their Lordships of the Supreme Court have held thus:- "3. In this appeal the leaned counsel for the appellant submits that the intention to cause the injury which was found sufficient to cause the death in the ordinary course of the nature was not established. In support of this submission he relied on the circumstances namely that the whole incident took lace because of a trivial incident which resulted in a quarrel and that the weapon used was only a lathi and in the circumstances it cannot be aid that the accused intended to cause the death by inflicting that particular injury which objectively was proved by the medical evidence to be sufficient in the ordinary course of nature to cause death. In other words he submits that clause 3 of S.300, IPC is not attracted in this case. We find considerable force in the submission. The weapon used is not a deadly weapon as rightly contended by the learned counsel. The whole occurrence was a result of a trivial incident and in those circumstances the accused dealt two blows on the head with a lathi, therefore, it cannot be stated that he intended to cause the injury which is sufficient at the most it can be said that by inflicting such injuries he had knowledge that he was likely to cause the death. In which case, the offence committed by him would be culpable homicide not amounting to murder. We accordingly set aside the conviction of the appellant under S.302, IPC and the sentence of imprisonment for life awarded thereunder. Instead we convict the appellant under S.304 Part II IPC and sentence him to five years R.I." 17. In AIR 1988 SC 2060 (STATE OF RAJASTHAN V. SATYANARAYAN, it has been held as follows: - "8. In our opinion, the prosecution had established beyond doubt that the respondent had given a knife blow to Kesar Lal and that he died as a result of the injuries caused by that blow. In AIR 1988 SC 2060 (STATE OF RAJASTHAN V. SATYANARAYAN, it has been held as follows: - "8. In our opinion, the prosecution had established beyond doubt that the respondent had given a knife blow to Kesar Lal and that he died as a result of the injuries caused by that blow. Though the injury as sufficient in the ordinary course of nature to cause death, the evidence discloses that the respondent had not aimed the blow on any vital part of Ram Gopal or Kesar Lal. The blow was aimed at Ram Gopal but as he moved aside, it landed on the stomach of Kesar Lal. The dispute was not such which would have promptedthe accused to cause the death of Kesar Lal, particularly when he had no dispute with Kesar Lal. This aspect was not at all considered by the trial Court or by the High Court. In our opinion, in view of the facts and circumstances of the case, the appellant should have been convicted under Section 304, Part I IPC and not under Section 302." 18. From the judgments cited above, it is clear that there was no intention to cause the death of the deceased, but the intention was only to cause injuries on P.W.1. Thus the offence committed by A.1 will be culpable homicide not amounting to murder and therefore, the offence brought home against A.1 could be only under Section 304 Part II IPC and not under Section 302 IPC. As far as this case is concerned, as already held, A.1 did not have any motive against the child or had any intention to cause the death of the child and he has used only a stick to cause injuries on P.W.1, which might have accidentally fell on the head of the child, resulting his death. Therefore for lack of any motive or intention against the child and the nature of weapon used and the nature of injury sustained by the child, we are of the considered opinion that justice would be met with if the conviction of A.1 under Section 302 IPC is set aside and conviction is modified as one under Section 304 Part II IPC to undergo R.I for Five years. As far as A.2 is concerned he has no overt act and he is therefore acquitted.