Judgment :- (Appeal filed under Section 374 of Criminal Procedure Code against the Judgment dated 15.7.1998 made in S.C.No.54 of 1998 on the file of the Principal Sessions Judge, Nagapattinam, convicting and sentencing the appellant to undergo ten years Rigorous Imprisonment for the offence under Section 304 Part II I.P.C. and to undergo one year Rigorous Imprisonment for the offence under Section 323 I.P.C.) The appellant is the sole accused in S.C.No.54 of 1998 on the file of the Principal Sessions Judge, Nagapattinam. This appeal is directed against the conviction and sentence of ten years Rigorous Imprisonment imposed on the accused for the offence under Section 304 Part II IPC and one year Rigorous Imprisonment for the offence under Section 323 I.P.C. as per Judgment dated 15.7.1998 and the sentences are to run concurrently. 2. The facts led to the filing of this appeal are as follows:- (a) The accused is the younger brother of the deceased and they are the sons of P.W.4 - Anjalai. The deceased was residing in the northern portion and the accused was residing in the southern portion of the same house at Viruthanganallur. P.W.1 – Ananthi is the wife of the deceased and P.W.2 is the son of the deceased. There was enmity between the deceased and his neighbour one Ravi and also between the deceased and the accused since the deceased was demanding the accused to vacate from the said house. (b) On the date of occurrence, i.e., on 05.11.1996 at 5.00 P.M., on seeing the wife of the accused returning from the house of Ravi, the deceased locked a portion of the house in which the deceased was living with his wife, preventing her from entering into the house and on his return from the day’s work, the accused questioned the attitude of the deceased in locking the house for which he informed him that since his wife went to the house of Ravi, who is his enemy, he locked the house. Due to the wordy quarrel that arose between them, the deceased turned violent; broke the cow-tub with his leg and went to the guppy road and shouted. Immediately, the deceased went inside the house and picked up reaper M.O.1 from near his house and attacked the deceased both on the left and right side of his head because of which blood oozed out from his head. Immediately, the deceased went inside the house and picked up reaper M.O.1 from near his house and attacked the deceased both on the left and right side of his head because of which blood oozed out from his head. P.W.1 - wife of the deceased made cry and the accused attacked her also in her head with M.O.1 thereby causing injury to her. Thereafter, the accused ran away from the occurrence place. P.W.1 found the deceased dead and with the Panchayatdars, she went to Manalmedu Police Station and gave complaint Ex.P.1 to P.W.8, Kodilingam, Head Constable. (c) On receipt of the complaint Ex.P.1, P.W.8 - Head Constable, attached to Manalmedu Police Station, registered case in its Crime No.439 of 1996 under Sections 302 and 324 I.P.C. He prepared printed First Information Report Ex.P.6 and obtained the fingerprint of P.W.1 and sent wireless message to P.W.11 – Palanivelu, Inspector of Police, Kuthalam, who was in-charge of Manalmedu Police Station during the relevant period. (d) P.W.11, Inspector of Police, on receipt of the wireless message from P.W.8, proceeded to Manalmedu Police Station and received First Information Report. P.W.11, upon taking up the case, went to the scene of occurrence and prepared the Observation Mahazar Ex.P.2 and Rough Sketch Ex.P.8 and recovered M.O.4 blood stained mud and sample mud M.O.5 under mahazar Ex.P.3. He then conducted inquest on the body of the deceased in the presence of the panchayatdars and the witnesses and prepared Inquest Report Ex.P.9 in the presence of witnesses P.W.2 to P.W.4. Thereafter, he sent the body for post mortem to Mayilauduthurai Government Hospital through P.W.10, Grade I Constable. On the same day, he went to Mayiladuthurai Government Hospital, where he recorded the statement of P.W.1 and recovered M.O.2 and M.O.3 through P.W.10 under mahazar Ex.P.10. Thereafter, he sent the body for post mortem to Mayilauduthurai Government Hospital through P.W.10, Grade I Constable. On the same day, he went to Mayiladuthurai Government Hospital, where he recorded the statement of P.W.1 and recovered M.O.2 and M.O.3 through P.W.10 under mahazar Ex.P.10. (e) The Doctor, P.W.6, C.Rajah, attached to Government Hospital, Mayiladuthurai, conducted autopsy on the body of the deceased and found the following injuries:- “External Injuries: 1/bew;wpapy; tyJ g[Utj;jpw;F 2 br/kP nkypUe;J jiyapd; tyJ kw;Wk; eLg; gFjpia nehf;fp xU fpHe;j fhak; 5 br/kP x 4 br/kP mstpy; cile;j brk;g[j; Jz;L kw;Wk; K:isg; gFjp bjhpa[k; tpjk; fhzg;gl;lJ/ (Edges (nc) of ante-mortem)/ jiyKo KGikahf ,Ue;jJ/ fhaj;ijj;jpwe;J ghh;j;jjpy; tyJ Frontal Bone 4 br/kP/ x 3 br/kP mstpy; xU Jz;lhf cile;J tyJ Kd; K:isg; gFjpapy (Frontal Bone) g[ije;J fhzg;gl;lJ/ tyJ K:is Kd; gFjpapy; 4 br/kP x 3 br/kP mstpy; rpije;jpUe;jJ/ 2/ ,lJ g[Utj;jpw;F 1 br/kP nkny 1 br/kP x 1 br/kP vYk;g[ bjhpa[k; tz;zk; xU fpHpe;j fhak; g[Utj;jpw;F ,izahf fhzg;gl;lJ/ Edges Echinosed. & Antemortem. 3. fhak; ,uz;ow;F nkny 1 br/kP nkny 5 br/kP x 3 br/kP/ mstpy; fpHpe;j fhak; ,lJ g[w bew;wp. ,lJ Kd; jiyapy; btspg; gFjpia nehf;fp cile;j vYk;g[ bjhpa[k; tpjk; cs;sJ/ Edges Echinosed. Antemortem Injuries. Bones Intact. nkw;fz;l fhaj;ij jpwe;J ghh;j;j nghJ ,lJ Frontal Bone- y; 4 br/kP mstpy; xU Linear Fracture btspf;fhaj;jpw;F xj;j tz;zk; ,Ue;jJ/ Edges no fractured. Bones echinosed. Antemortem ,lJ gf;f K:is rhjhuzkhf ,Ue;jJ/ 4/, lJ fd;dj;jpy; ,lJ fhJf;F 4 br/kP Kd;ghf 3 br/kP x 1 br/kP mstpy; xU fpHpe;jfhak; cile;j vYk;g[ bjhpa[k; tpjk; cs;sJ/ Edges echinosed. Antemortem. Oblique in direction. fhaj;ij jpwe;J ghh;j;jjpy; Maxilla Bonecile;jpUe;jJ/ 5/tyJ fPH; jhilapypUe;J tyJ fd;dj;ij nehf;fp 4 br/kP x 3 br/kP mstpy; xU fpHpe;j fhak; cile;j tyJ jhil vYk;g[ bjhpa[k; tpjk; ,Ue;jJ/tyJ gFjpapy; fPH; thpirg; gw;fs; Mof; brhz;oUe;jd/ Opening the Thorax:- tpyh vYk;g[fs; Kwptpy;iy/ fGj;Jg; gFjpapy; K:r;Rf; FHha; rhjhuzkhf ,Ue;jJ/ fGj;J Kd; vYk;g[ (Hyoid Bone .. ) rhjhuzkhf ,Ue;jJ/ ,Ujak; ,ay;ghd mstpy; ,Ue;jJ/ ,Uja miwfs; fhypahf ,Ue;jJ/ EiuaPuy;fs; ,ay;ghd mstpy; ,Ue;jJ/ btsphpf; fhzg;gl;lJ/ OPENING THE ABDOMEN:- Peritoneum rhjhuzkhf ,Ue;jJ/ tapW fhypahf btspwpa epiyapy; ,Ue;jJ/ kw;w cs; cWg;g[fs; btspwpa epiyapy; ,ay;ghd mstpy; ,Ue;jJ/” The Post-Mortem Certificate is Ex.P.4. The Doctor P.W.6 has opined that the deceased would appear to have died of shock and haemorrhage due to the head injury. (f) P.W.11 sent the injured P.W.1 – wife of the deceased for treatment to Mayiladuthurai Government Hopspital. The Doctor P.W.6 has opined that the deceased would appear to have died of shock and haemorrhage due to the head injury. (f) P.W.11 sent the injured P.W.1 – wife of the deceased for treatment to Mayiladuthurai Government Hopspital. P.W.7 Dr.S.K.Kausalya, attached to Government Hospital, Mayiladuthurai, gave treatment to P.W.1 and found the following injuries: 1. A fresh lacerated wound 3” X 2” X ¼” size over scalp in the frontal region shaped. 2. A fresh lacerated would ½” X ¼” X ¼” size over (L) side of forehead. 3. A diffuse fresh swelling over (R) knee. The copy of Accident Register is Ex.P.5 issued by P.W.7. The Doctor has opined that the injuries are simple in nature. (g) After post-mortem, P.W.10, Grade-I Police Constable, handed over M.Os.6 and 7 to P.W.11 along with Special Report Ex.P.7. (h) P.W.11 took up further investigation and arrested the accused on 06.11.1996 around 12.30 P.M. near Kesingan Bus stand in front of the witnesses P.W.5 – Sivasami and one Ramayyan. He recorded the confession statement (admissible portion) of the accused Ex.P.11 and based on that, recovered M.O.1 - reaper under mahazar Ex.P.12 in the presence of the witnesses. Thereafter, he proceeded to the Police Station and sent the accused for remand. (i) On 07.11.1996, he subjected M.O.1 – reaper to P.W.6 Doctor and on 13.11.1996 subjected M.Os. 1 to 5 to Forensic Lab along with requisition Ex.P.13 and received Ex.P.14 – Chemical Report and Ex.P.15 – Serological Report. P.W.11 handed over the file to P.W.12, who resumed duty. (j) P.W.12 – Annadurai, Inspector of Police, who received the file from P.W.11, verified the earlier investigation conducted by P.W.11 and took up further investigation; examined P.Ws. 6 to 10 and recorded their statements. After completion of investigation, he filed the final report against the accused. 3. In order to establish the guilt of the accused, the prosecution examined P.Ws.1 to 12 and marked Exs.P.1 to P.15 besides M.Os.1 to 7. 4. When the accused was questioned under Section 313 of the Code of Criminal Procedure, on the basis of the incriminating evidence made available against him by the prosecution, he denied the case of the prosecution and stated that false case has been foisted against him. 5. 4. When the accused was questioned under Section 313 of the Code of Criminal Procedure, on the basis of the incriminating evidence made available against him by the prosecution, he denied the case of the prosecution and stated that false case has been foisted against him. 5. The trial Court, in appreciation of such evidence, recorded finding that the offence under Section 302 IPC is not attracted and inasmuch as the accused, in a sudden fight without premeditation and in a heat of passion upon a sudden quarrel, by picking up the reaper from near his house attacked the deceased, only an offence under Section 304 Part-II IPC is made out. The trial Court further held that inasmuch as the accused has attacked on the head of P.W.1 – wife of the deceased with M.O.1 reaper thereby causing simple injury, an offence under Section 323 has been made out against him. Accordingly, convicted and sentenced the accused as set out above, which is challenged in this appeal. 6. Head the learned counsel for the appellant and the learned Government Advocate (Criminal side) for the respondent. 7. The learned counsel for the appellant/sole accused submitted that though as per the case of prosecution, the occurrence took place at 5.00 P.M., the complaint Ex.P.1 was made only at 9.30 P.M. in the Police Station, which is at a distance of only 5 Kms. from the scene of occurrence and though the First Information Report was registered at 9.30 P.M., it reached the Court only at 3.00 A.M. on 06.11.1996 and as such, according to the learned counsel, there have been very much delay in preferring the complaint Ex.P.1 by P.W.1 and the First Information Report in reaching the Court. He further submitted that though P.W.2 – son of the deceased, who was also examined as witness, has spoken to the occurrence, his name does not find place in Ex.P.1 and as such, he could not have been present at the time of occurrence and that, therefore, his evidence cannot be relied on. Learned counsel further argued that there is no clear evidence with regard to the place of occurrence. Learned counsel further argued that there is no clear evidence with regard to the place of occurrence. It is vehemently contended by the learned counsel that on the date of occurrence, the deceased was enraged over the return of the wife of the accused from the house of Ravi, who is his enemy; restrained her from entering into her portion of the house; and broke the earthern bowl of the accused meant for watering the animal because of which the entire occurrence took place and as such, according to him, the deceased was the real aggressor. It is further submitted by the learned counsel that since the accused and his wife were restrained form entering into their portion of the house, in a heat of passion, the accused attacked the deceased with reaper – M.O.1. It is also argued that no independent witness was examined on the side of prosecution to speak to the occurrence corroborating the evidence of interested witnesses, viz., P.W.1 and P.W.2, wife and son of the deceased respectively and, therefore, the evidence of the interested witnesses, viz., P.W.1 and P.W.2, cannot be accepted and the same was also not corroborated by medical evidence. Learned counsel submitted that considering the age and family circumstances of the accused, which consists of his wife and two children, and since the occurrence had taken place in a sudden fight in a heat of passion upon a sudden quarrel, leniency may be shown to the accused. 8. Learned Government Advocate submitted that it has been clearly proved by the prosecution by clinching evidence that the accused caused the death of the deceased by attacking him with M.O.1 – reaper and the occurrence had taken place in the presence of P.W.1 - wife of the deceased, which was also witnessed by P.W.2 - son of the deceased. He also submitted that though P.W.3 turned hostile, supporting the case of prosecution, she has stated in her chief-examination that on her return to house after day’s work on 05.11.1996 at 5.30 pm, she found the deceased dead. He also submitted that though P.W.3 turned hostile, supporting the case of prosecution, she has stated in her chief-examination that on her return to house after day’s work on 05.11.1996 at 5.30 pm, she found the deceased dead. It is further submitted by the learned Government Advocate that satisfactory evidence was let on the side of the prosecution through P.W.1 and P.W.2 that at the time of occurrence, the accused attacked the deceased on his head with M.O.1 - reaper, which resulted in immediate death of the deceased and the act was done pursuant to the sudden fight between the accused and the deceased. It is the further submission of the learned Government Advocate that the evidence of P.W.1 and P.W.2 tallies with the First Information Report and the injuries mentioned in Ex.P.4 Post-Mortem Certificate and that the accused also attacked P.W.1 – wife of the deceased with reaper M.O.1 causing simple injuries as noted in Ex.P.5 Accident Register and the same has been spoken to by her and also by P.W.2. Hence, the finding of the Sessions Court that the accused has committed offences under Sections 304 Part-II and 323 I.P.C. and the conviction and sentence passed thereon need not be disturbed. 9. The occurrence had taken place on 05.11.1996 at 5.00 P.M. in the guppy road at Viruthanganallur village in front of the house of the deceased when the accused questioned him about locking of his house preventing his wife from entering into the house to which the deceased replied that since she returned from the house of his enemy Ravi, he locked the house over which the accused got enraged and followed by a wordy quarrel between him and the deceased, the deceased broke the cow-tub with his leg and went to the road shouting. Immediately, the accused went inside his house and brought the reaper - M.O.1 from near his house and attacked the deceased on both sides of his head because of which the blood oozed from the head of the deceased, which was witnessed by P.W.1 and when she shouted, she was also attacked by the accused with M.O.1 – reaper and then the accused ran away from the occurrence place. 10. 10. As regards the delay in preferring complaint Ex.P.1, it is seen that P.W.1 has stated in her evidence that since the villagers were not available at the time of occurrence and came only at 7.00 P.M. after attending a condolence, she went to the Police Station in a bi-cycle along with one Swaminathan at 9.00 P.M. and made the complaint at 9.30 P.M. It is also seen that investigation was done by P.W.11, Inspector of Police, who, on receipt of the wireless message from P.W.8 at 10.00 P.M. on 05.11.1996, went to the Manalmedu Police Station at 10.30 P.M. P.W.9, Grade I Constable, attached to Manalmedu Police Station at the time of occurrence, has stated in his evidence that on receiving the express First Information Report, he went to Vaitheeswaran Koil at 12.30 P.M. in a Lorry; got into a bus in the early morning of 06.11.1996, i.e., at 2.15 A.M.; reached Mayiladuthurai at about 3.30 A.M. and submitted the the First Information Report at the house of the Judicial Magistrate at 3.50 A.M. and as such, there is no delay in preferring the complaint Ex.P.1 and the First Information Report in reaching the Court. 11. No doubt, in the complaint Ex.P.1, the name of P.W.2 – son of the deceased has not been mentioned as one of the eye-witnesses. But, however, according to the case of prosecution, P.W.2 has also seen the occurrence. Since the occurrence took place in front of the house of the deceased, naturally, P.W.2, being the son of P.W.1 and the deceased, could have witnessed the occurrence. Even otherwise, it is seen that P.W.2 has clearly stated in his evidence about the assault made by the accused with M.O.1 – reaper on the head of the deceased because of which blood oozed out from his head causing instantaneous death. It is evident that the injuries spoken to by P.W.1 tallies with the injuries mentioned in Ex.P.1 complaint and also with the injuries noted down by the Doctor P.W.6 in the Post-Mortem Certificate Ex.P.4. It is evident that the injuries spoken to by P.W.1 tallies with the injuries mentioned in Ex.P.1 complaint and also with the injuries noted down by the Doctor P.W.6 in the Post-Mortem Certificate Ex.P.4. P.W.11, Investigating Officer, has stated clearly in his evidence that at the time of arrest of the accused, he gave confession statement Ex.P.11 (admissible portion) on the basis of which, he recovered M.O.1 – reaper under mahazar Ex.P.12 and, therefore, though P.W.5 has not supported the case of prosecution, as rightly observed by the trial Court, there is nothing to disbelieve the evidence of P.W.11. 12. Therefore, it is clear from the complaint Ex.P-1 and the evidence let in through P.W.1 and P.W.2 that at the time of occurrence, since the deceased locked the portion of the house in which the accused was residing with his wife, thereby preventing her from entering into the house and since the deceased broke the cow-tub, which was kept by the accused, the accused out of sudden heat of passion took M.O.1 reaper and attacked him on his head and as such, he could not have aimed the deceased to attack on the vital part, more particularly, the head. 13. The trial Court, rightly considering that the prosecution has proved the guilt of the accused with clinching evidence, found the accused guilty under Section 304 Part – II I.P.C. Inasmuch as the occurrence had taken place in a sudden fight and in the heat of passion upon sudden quarrel between the accused and the deceased, during which time, the accused, by bringing M.O.1 reaper from near his house, without premeditation, attacked the deceased which resulted in causing the death of the deceased, offence under Section 304 Part-II IPC is alone attracted. As such, the finding of the trial Court does not call for interference. The evidence of P.W.1 that she was also attacked by the accused with M.O.1 – reaper is also clearly proved and supported by First Information Report and medical evidence and as such, the finding of the trial Court that the accused is guilty under Section 323 also does not warrant interference of this Court and accordingly, it is also confirmed. 14. As regards sentence, learned counsel for the accused submitted that leniency may be shown to the accused while imposing sentence. 14. As regards sentence, learned counsel for the accused submitted that leniency may be shown to the accused while imposing sentence. Considering the fact that the accused was aged 33 years at the time of occurrence and he is survived by his wife and two children, it will be just and proper, if the sentence is modified as that of five years rigorous imprisonment instead of ten years for the offence under Section 304 Part II I.P.C. Accordingly, the sentence is reduced to 5 years for the offence under Section 304 Part II I.P.C. confirming the sentence of one year Rigorous Imprisonment for the offence under Section 323 I.P.C. 15. In the result, in view of the discussions made above, the appeal is allowed partly. The judgment of conviction passed by the trial Court in respect of the offences under Sections 304 Part II and 323 I.P.C. is confirmed. The sentence awarded for the offence under Section 304 Part II I.P.C. is modified to that of five years Rigorous Imprisonment instead of ten years Rigorous Imprisonment confirming the sentence of one year Rigorous Imprisonment for the offence under Section 323 I.P.C. The period of sentence already undergone by the accused is ordered to be set off under Section 428 of the Code of Criminal Procedure and the trial Court is required to secure the custody of the accused to undergo the remaining period of sentence, if any. The bail bond, if any, executed by the accused is ordered to be cancelled.