Judgment :- (Criminal Appeal filed under Section 374(2) of Criminal Procedure Code against the judgment of conviction dated 12.5.1999 passed in S.C.No.56 of 1997 on the file of the First Additional Sessions Court of Dharmapuri and Chief Judicial Magistrate Court of Krishnagiri at Krishnagiri.) The appellant is the sole accused in S.C.No.56 of 1997 on the file of the First Additional Sessions Court of Dharmapuri and Chief Judicial Magistrate Court of Krishnagiri at Krishnagiri. The appeal is filed against the conviction and sentence imposed on the accused to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,000/-, in default to undergo three months simple imprisonment for the offence under Section 304 Part-II, IPC and to undergo rigorous imprisonment for one year and to pay a fine of Rs.250/-, in default, to undergo simple imprisonment for one month for the offence under Section 324, I.P.C. as per the judgment dated 12.5.1999. 2. The brief facts that led to the filing of this appeal are as follows:- “(a) P.W.2 Poojiammal is the wife of the deceased Poadiappan, who is the poosari of Karumariamman temple, Maithandapalli. P.W.1 Muniappan went to the temple on Friday Morning and poojai was performed by the deceased Poadiappan and as requested by the poojari, the deceased, P.W.1 stayed in the temple. The accused was brought by one Chinnaraj on the said Friday Evening to cure some disease to the accused. P.W.1, accused and Chinnaraj stayed in the temple on Saturday and Sunday and they informed the deceased that they would leave the temple on Monday. Since the deceased said that he would perform poojai, they stayed at temple on Monday also. (b) On Tuesday morning, i.e., the day of occurrence 19.11.1996 (two years before P.W.1 gave evidence on 16.3.1999), the accused by stating as to why Chinnaraj has not taken him back to his place, took M.O.1 Thirisoolam from nearby ant-hill and stabbed on the left hand shoulder of Chinnaraj with back sharp portion of M.O.1. When the deceased poojari intervened, the accused also stabbed the deceased on the neck above the left chest with back sharp portion of M.O.1 Thirisoolam. When P.W.2 came running, the accused also stabbed P.W.2 on her right axilla with back sharp portion of M.O.1 Thirisoolam. P.W.1 shouted and P.W.3 Ellappan came. The accused ran towards West with M.O.1 chased by P.W.3. The deceased died on the spot. When P.W.2 came running, the accused also stabbed P.W.2 on her right axilla with back sharp portion of M.O.1 Thirisoolam. P.W.1 shouted and P.W.3 Ellappan came. The accused ran towards West with M.O.1 chased by P.W.3. The deceased died on the spot. (c) P.W.1 took P.W.2, the wife of the deceased to Hosur Government Hospital in the tempo and on the way, P.W.1 got down at Soolagiri and went to police station. P.W.1 gave the complaint Ex.P-1 at 8.00 a.m. on 19.11.1996 to P.W.9, the Sub Inspector of Police, Soolagiri, who registered the same in Crime No.498 of 1996 under Sections 324 and 302 IPC. Ex.P-10 is the printed FIR. P.W.9 sent the copy of FIR to the Court and higher officials. P.W.9 gave information to P.W.12, the Inspector of Police at 9.00 a.m. when he came to police station. (d) P.W.12 took up investigation and went to the scene of occurrence, viz., Maithandapalli Karumariamman temple at 9.15 a.m. and prepared rough sketch Ex.P-16 and observation mahazar Ex.P-2 in the presence of P.W.5 Perumal and one Appavu. P.W.12 conducted inquest on the body of the deceased between 10.00 a.m. to 11.00 a.m. in the presence of panchayatars. Inquest report is Ex.P-17. P.W.12 sent the body of the deceased for post-mortem through constable P.W.8. (e) On receiving the requisition Ex.P-9, P.W.10, Dr.Balasubramanian, attached to the Hosur Government Hospital conducted autopsy on the body of the deceased at 10.00 a.m. on 20.11.1996. P.W.10 found the following external injuries:- “An incised wound of 2 cm x 1 cm x 10 cm over the left supra clavicular region seen. On exploring the wound left subclavicular artery of vein were found severed.” Doctor P.W.10 has opined that the deceased would appear to have died of shock and haemmorrhage due to injury to major blood vessels about 24 to 30 hours prior to autopsy. He issued post-mortem certificate Ex.P-11. (f) In the mean time P.W.2, the injured was admitted in the Hosur Government Hospital by her daughter-in-law Maragadham. P.W.2 was examined by Doctor P.W.7 at 11.00 a.m. on 19.11.1996. P.W.7 found the following injury:- “Contusion 5 cm x 5 cm over right sided chest lateral aspect with stab wound 2 cm x 2 cm x depth could not be measured over it, because of fresh bleeding from the wound.” P.W.7 doctor opined that the injury is simple and P.W.2 was discharged from the hospital on 26.11.1996. P.W.7 found the following injury:- “Contusion 5 cm x 5 cm over right sided chest lateral aspect with stab wound 2 cm x 2 cm x depth could not be measured over it, because of fresh bleeding from the wound.” P.W.7 doctor opined that the injury is simple and P.W.2 was discharged from the hospital on 26.11.1996. P.W.7 issued wound certificate Ex.P-5. (g) P.W.12 examined the injured Chinnaraj and sent him to hospital for taking treatment for the injury suffered by him. P.W.12 came back to the police station and then went to Hosur Government Hospital and examined P.W.2, who was taking treatment as inpatient. (h) P.W.7, who gave treatment to Chinnaraj issued wound certificate Ex.P-8. As per wound certificate Ex.P-8, P.W.7, doctor found the following injuries:- “(1) Lacerated injury 2 cm x 2 cm x 3 cm depth over left arm. (2) 5 cm x 5 cm contusion over right sided back (3)10 cm x 1 cm abrasion over right elbow” P.W.7 has opined that the injuries are simple and he discharged Chinnaraj on 22.11.1996. (i) P.W.12 continuing the investigation arrested the accused on 19.11.1996 at 4.00 p.m. in the presence P.W.6, Village Administrative Officer and Thalayari. The accused gave confession statement, the admissible portion is Ex.P-3 in the presence of the above witnesses and took P.W.12 and the above witnesses and produced M.O.1 Thirisoolam, hidden in a bush nearby banian tree, situated in the Maithandapalli road. P.W.12 recovered the same under Ex.P-4 seizure mahazar in the presence of the above said witnesses. He sent the accused for remand and also the material objects to the Court of Judicial Magistrate. After completing investigation, P.W.12 filed the final report. Serological report is Ex.P-15 and the chemical report is Ex.P-14.” 3. To prove the case, the prosecution examined P.Ws.1 to 12 and marked Exs.P-1 to P-17 and M.Os.1 to 4. Prosecution has not examined Chinnaraj, the injured during the occurrence as not available. 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/State, he said that he did not know anything and also 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/State, he said that he did not know anything and also stated that false case has been foisted against him. 5. In considering such evidence, the trial Court found the accused guilty under Section 304 Part-II, I.P.C. and convicted and sentenced as set out above, which are challenged in this appeal by the accused. 6. Heard the learned counsel for the appellant and the learned Government Advocate (Criminal Side) for the respondent/State. 7. The learned counsel for the appellant/accused submitted that P.Ws.1 and 2 could not have witnessed the occurrence, in that, it is not believable that P.W.1 stayed in the Karumariamman temple, the place of occurrence, from Friday and till the occurrence took place on Tuesday, especially, when the poojai for P.W.1 was performed by the deceased on Friday itself and since it is stated by P.W.1 that on the date of occurrence he went to Maithandapalli for drinking tea. As regards P.W.2, it is submitted by the learned counsel that her evidence is also unbelievable since she has stated that she used to stay in the village during night and as such, according to the learned counsel, she could not have been present during occurrence time and witnessed the occurrence. Then by referring the injuries said to have been caused as per the medical evidence of P.W.7 and the wound certificate Ex.P-5 issued by P.W.7 to P.W.2 and also P.W.10, post-mortem doctor and post-mortem certificate Ex.P-11 issued by P.W.10 to the deceased, it is argued that such injuries could not have been caused by the accused attacking with the back portion of M.O.1 Thirisoolam which could have been blunt. Then, he submitted that P.W.2 has not identified the accused and therefore, the presence of P.Ws.1 and 2 in the scene of occurrence is very much doubtful. 8. It is further submitted by the learned counsel for the accused that non-examination of Chinnaraj, who was also attacked with the said M.O.1 Thirisoolam by the accused and who also witnessed the entire occurrence, is fatal to the case of prosecution. 8. It is further submitted by the learned counsel for the accused that non-examination of Chinnaraj, who was also attacked with the said M.O.1 Thirisoolam by the accused and who also witnessed the entire occurrence, is fatal to the case of prosecution. Then, the leaned counsel also argued that P.W.3 in his evidence has stated that the accused was brought at 9.00 a.m., whereas it is the evidence of P.W.12 that he arrested the accused at 4.00 p.m. and as such, there is contradiction in the evidence of prosecution with regard to the arrest of the accused. Then, it is also submitted that there have been contradiction in the evidence of P.W.6 and P.W.12 with regard to the recovery of M.O.1 Thirisoolam. It is also contended that since the post-mortem doctor P.W.10, who conducted post-mortem at 10.00 a.m. on 20.11.1996, has stated in his cross-examination that the death of the deceased could have been caused 35 to 40 hours prior to the post-mortem, the occurrence could not have taken place at 6.00 a.m. on 19.11.1996 as stated by P.Ws.1 and 2. 9. Learned Government Advocate (Criminal Side) argued that the prosecution through P.Ws.1 and 2 have stated clearly the occurrence, during which time, the accused attacked firstly one Chinnaraj and then the deceased and the injured P.W.2. It is further submitted by the learned Government Advocate that in the complaint Ex.P-1 preferred by P.W.1, the entire occurrence is stated that on 19.11.1996 at 6.00 a.m. the accused stabbed Chinnaraj with M.O.1 Thirisoolam on his left upper hand causing blood injuries and when the deceased intervened, the accused stabbed the deceased with M.O.1 on his neck causing the death of the deceased and when P.W.2 intervened she was also stabbed with M.O.1 on the back side of her right axilla. 10. As regards the argument advanced for the accused that the death could not have been caused by attacking with the back portion of M.O.1 blunt portion, it is submitted by the learned Government Advocate that the back portion of M.O.1 is also a sharp portion and therefore, the assault made with the said back portion of M.O.1 caused immediate death of the deceased by the accused. Therefore, the trial Court considering such satisfactory evidence let in on the side of the prosecution, rightly found the accused guilty under Section 304, Part-II, I.P.C., and as such, the conviction and sentence need not be disturbed. 11. The occurrence took place on 19.11.1996 at 6.00 a.m. in Karumariamman Temple where P.W.1, who came to perform poojai on Friday, stayed till the date of occurrence, viz., on Tuesday. P.W.1 stayed with the accused and Chinnaraj, who brought the accused to cure some disease. On the day of occurrence, viz., on Tuesday at 6.00 a.m. the accused by stating as to why he is not taking him back to his place, stabbed Chinnaraj with back portion of M.O.1 Thirisoolam by taking the same from nearby ant-hill and when the deceased tried to intervene, the accused stabbed the deceased with back portion of M.O.1 on his neck above the left chest and when P.W.2, the wife of the deceased came running, the accused attacked her with back portion of M.O.1 on her right axilla On hearing the noise raised by P.W.1, P.W.3 Ellappan came and so the accused ran away with M.O.1 chased by P.W.3. The deceased died on the spot. 12. Then, P.W.2, the injured (wife of the deceased) was taken in tempo by P.W.1 to Hosur Government Hospital and on the way P.W.1 got down and gave complaint Ex.P-1, in which the entire occurrence is clearly stated. The occurrence took place at 6.00 a.m. The complaint Ex.P-1 was given at 8.00 a.m. to P.W.9 and the printed FIR reached the Court at 10.30 a.m. on the same day. All these facts clearly suggest that there is truth in the case of prosecution and the occurrence took place as stated by P.Ws.1 and 2 and as per the complaint made by P.W.1. 13. The accused was arrested at 4.00 p.m. on 19.11.1996 and he gave confession statement, the admissible portion is Ex.P-3, on the basis of which M.O.1 Thirisoolam was recovered in the presence of P.W.6 and another. Therefore, by letting in such evidence, the prosecution clearly proved the case against the accused that in view of the attack made by the accused with back portion of M.O.1 Thirisoolam caused the death of the deceased at the time of occurrence and when P.W.2 intervened, she was also stabbed with M.O.1. 14. Therefore, by letting in such evidence, the prosecution clearly proved the case against the accused that in view of the attack made by the accused with back portion of M.O.1 Thirisoolam caused the death of the deceased at the time of occurrence and when P.W.2 intervened, she was also stabbed with M.O.1. 14. P.W.3 was examined on 16.3.1999 with regard to the occurrence that took place on 19.11.1996 and as such, he could have stated mistakenly that the accused was brought at 9.00 a.m. But he has not stated that the accused was brought as such at 9.00 a.m. by the police. Therefore, there is no force in the argument advanced by the learned counsel for the appellant/accused that there is contradiction in the evidence of prosecution with regard to the arrest of the accused. As per the evidence of P.W.12 the accused was arrested at 4.00 p.m. on 19.11.1996. 15. Since the accused stabbed the deceased in the heat of passion upon sudden quarrel, the offence under Section 304 Part-II, I.P.C. is attracted and accordingly the trial Court convicted and sentenced the accused as set out above and such conviction and sentence does not call for any interference. 16. At the time of stabbing the deceased, when the injured P.W.2 came running she was also attacked with the back portion of M.O.1 causing simple injury as per the evidence of the doctor P.W.7 and wound certificate issued by him Ex.P-5 and therefore, the conviction and sentence imposed by the trial Court under Section 324 I.P.C. as regards P.W.2 does not call for any interference. 17. In the result, the Criminal Appeal fails and is dismissed. The judgment of conviction dated 12.5.1999 passed in S.C.No.56 of 1997 by the First Additional Sessions Court of Dharmapuri and Chief Judicial Magistrate Court of Krishnagiri at Krishnagiri is confirmed. The bail bonds executed by the appellant/accused is cancelled. The First Additional Sessions Judge of Dharmapuri and Chief Judicial Magistrate of Krishnagiri at Krishnagiri is directed to secure the custody of the appellant/accused to undergo the remaining portion of sentence.