Judgment :- M. Chockalingam, J. Challenging the judgment of the learned Principal Sessions Judge, Ramanathapuram made in S.C.No.57 of 2004, the appellant herein, who stood charged under Section 302 IPC, tried, found guilty and awarded life imprisonment and to pay a fine of Rs.5000/-, in default to undergo six months RI, has brought forth this appeal before this Court. 2. The brief facts of the prosecution case can be stated thus: a) P.W.1 is the wife of the deceased Alagarsamy. The accused is the father of the deceased. P.W.3 is the wife of the accused. P.W.2 is the neighbour. During the relevant time, P.W.1 was pregnant by 9 months. The ceremony of wearing bangles was to be celebrated. The deceased was demanding money from his father. The father refused to give and that the deceased got angry. Immediately, he pushed his father down. At that time, there was a wordy dual, in which the accused took the stick, M.O.1, found nearby and attacked the deceased on his head and on different parts of his body. The occurrence was witnessed by P.Ws.1 to 3 and others. The accused left the place of occurrence. b) Immediately, P.W.1 and others took the injured to the Government Hospital, Ramanathapuram and he was admitted in the hospital by P.W.7, the Doctor at about 4.20 p.m. P.W.7 gave treatment to the injured and gave Ex.P.5, the accident register. He further advised that the injured should be taken to the Government Hospital, Madurai. Accordingly, he was taken to the Madurai Rajaji Government Hospital, where P.W.8, the Doctor has given treatment to him. Despite treatment, he died at about 3.30 p.m. on 17. 2003. c) Further, intimation was given to the respondent police at 17.15 hours. On receipt of the intimation on 17. 2003 at 17.15 hours, P.W.14, the Head Constable along with the Inspector of Police, went to the Rajaji Government Hospital, Madurai and took Ex.P.1, the complaint of P.W.1, on the strength of which, a case came to be registered by the respondent police in Crime No.194 of 2003. Ex.P.11, the FIR was despatched to the Court. d) On receipt of the copy of the FIR, P.W.16, the Inspector of Police, took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.9, the observation mahazar and Ex.P.14, the rough sketch. Ex.P.11, the FIR was despatched to the Court. d) On receipt of the copy of the FIR, P.W.16, the Inspector of Police, took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.9, the observation mahazar and Ex.P.14, the rough sketch. Then, he went to the Rajaji Government Hospital, Madurai and conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.15, the inquest report. Following the same, the dead body of the deceased was sent for the purpose of autopsy along with the requisition. e) P.W.10, the Doctor attached to the Madurai Medical College Hospital, on receipt of the requisition, has conducted autopsy on the dead body of the deceased and has issued Ex.P.8, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of cranio cerebral injuries. f) Pending investigation, the accused was arrested on 17. 2003 in the presence of the witnesses. He voluntarily gave a confessional statement, which was recorded in the presence of the witnesses, the admissible part of which was marked as Ex.P.3. Pursuant to the same, the accused produced M.O.1, stick to the Investigator, which was recovered in the presence of the witnesses under a cover of mahazar. The accused was sent for judicial remand. All the M.Os recovered from the place of occurrence, from the dead body of the deceased and the M.O.1 recovered from the accused were subjected to chemical analysis by the Forensic Science Department. Ex.P.6 is the Chemical Analysts report and Ex.P.10 is the Serologists report. On completion of the investigation, final report was filed by the Investigating Officer. .3. The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges, the prosecution has marched 16 witnesses and relied on 15 exhibits and one M.O. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which he flatly denied as false. On the side of the accused, only two witnesses were examined as D.Ws.1 and 2. On the side of the accused, only two witnesses were examined as D.Ws.1 and 2. On completion of the evidence on both sides, the trial court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and found the accused/appellant guilty as per the charge and awarded imprisonment as referred to above, which is the subject matter of challenge before this Court. 4. Advancing his arguments on behalf of the appellant, the learned counsel would submit that in the instant case, the prosecution has miserably failed to prove its case, though it rested its case through direct evidence; that P.W.1 is the wife, P.W.2 is the neighbour and P.W.3 is the mother of the deceased; that in the instant case, these eyewitnesses have given false evidence before the court, which would be quite evident from the documentary evidence relied on by the prosecution; that even according to the prosecution, immediately after the occurrence, the deceased was taken to the Government Hospital, Ramanathapuram and he was admitted by P.W.7, the doctor; that at the time when he was admitted, a statement was recorded that he fell down from Vagai tree and sustained injuries; that it is also made mentioned in Ex.P.5, the accident register; that this was the earliest document available in the prosecution case and thus, it would be quite clear that no reason is available to disbelieve this part of the evidence relied on by the prosecution. .5. Added further the learned counsel that in the instant case, the deceased was referred to Madurai Rajaji Government Hospital, where he was admitted and despite treatment, he died at 3.30 p.m. on 17. 2003; that though there were communications received by the respondent police, no steps were taken to register the case; that according to the prosecution, he died at 3.30 p.m.; that after the intimation was received by the respondent police, the Inspector of Police went over to the hospital and recorded the statement of P.W.1, which was marked as Ex.P.1 and the case came to be registered at about 5.15 p.m.; that the occurrence has taken place on 7. 2003 at 4.00 p.m. and the case came to be registered by the police on the information received by them on 17. 2003 at 4.00 a.m.; and that the delay, which remained unexplained, was fatal to the prosecution case. 2003 at 4.00 p.m. and the case came to be registered by the police on the information received by them on 17. 2003 at 4.00 a.m.; and that the delay, which remained unexplained, was fatal to the prosecution case. 6. Added further the learned counsel that in the instant case, the prosecution came with the theory through the evidence of P.Ws.3 and 4 and D.Ws.1 and 2; that it is true, P.W.3 is the wife of the accused; that P.W.4 and D.W.2 are the neighbours, who have clearly spoken about the Vagai tree situated nearby; that according to the defence theory, the deceased on the date of occurrence, has climbed over the tree and fell down and sustained injuries and subsequently, he died; that the defence theory was thoroughly fructified by documentary evidence, namely, Ex.P.5, the Accident Register, which was the earliest document came into existence within the short span of 20 minutes from the time of occurrence; that in the instant case, the prosecution has miserably failed to prove the case beyond reasonable doubt and has come forward with a false theory; that the manner in which, the injuries were sustained must be taken into consideration and thus, the fact that the deceased fell down from the tree and sustained injuries has got to be accepted and he is entitled for acquittal in the hands of the court. 7. Added further, the learned counsel that even assuming that it was the accused, who took the stick and attacked the deceased and caused his death, it was due to wordy dual between the father and son, as per the prosecution case; that the son pushed down his father and immediately, on being provoked, the father took the stick and attacked the deceased. Hence, the act of the accused was not pre-planned nor intentional nor pre-meditated, but it was only due to provocation by circumstances. Hence, the act of the accused has got to be considered by the Court. 8. Heard the learned Additional Public Prosecutor on the above contentions. 9. The Court has paid its anxious consideration on the submissions made. 10. It is not the fact in controversy that one Alagarsamy was done to death in an incident that took place on 7. 2003. 8. Heard the learned Additional Public Prosecutor on the above contentions. 9. The Court has paid its anxious consideration on the submissions made. 10. It is not the fact in controversy that one Alagarsamy was done to death in an incident that took place on 7. 2003. Following the inquest made by the Investigating Officer, the dead body of the deceased was subjected to post-mortem by P.W.10, the Doctor, who has issued Ex.P.8, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of cranio cerebral injuries. Apart from that, the said fact was not disputed by the appellant at any stage of proceedings. Hence, without any impediment whatsoever, it has got to be recorded that the deceased died out of homicidal violence. 11. In order to substantiate the fact that it was the accused, who attacked his son, since deceased, the prosecution has examined P.Ws.1 to 4, out of whom, P.Ws.1 and 2 have categorically spoken the fact in one voice that it was the accused, who attacked the deceased with a stick. The Court is mindful of the caution made by the law that when the eyewitnesses are closely related to the deceased, their evidence, before acceptance, must be tested with care and caution. In the instant case, P.W.1 is the wife of the deceased. It is pertinent to point out that P.W.1 has given a true story that the ceremony of wearing bangles was to be celebrated and the deceased was demanding money from his father, but his father refused to give and there arose a wordy quarrel and in that wordy dual, P.W.1s husband pushed his father down and that, his father took a stick and attacked the deceased. This evidence of P.W.1 was corroborated by the evidence of P.W.2 and thus, this part of the evidence adduced by the prosecution was convincing and acceptable. On the contrary, the evidence through P.Ws.3 and 4 and D.Ws.1 and 2 cannot be accepted for the simple reason that P.W.3 is the wife of the accused and D.W.1 is the co-brother of the accused. Apart from that, P.W.4 and D.W.2 have spoken the fact that there was a Vagai tree. 12. On the contrary, the evidence through P.Ws.3 and 4 and D.Ws.1 and 2 cannot be accepted for the simple reason that P.W.3 is the wife of the accused and D.W.1 is the co-brother of the accused. Apart from that, P.W.4 and D.W.2 have spoken the fact that there was a Vagai tree. 12. The contention of the learned counsel for the appellant is that there was a Vagai tree nearby the house and it was also made mentioned in the observation mahazar and at the time of occurrence, the deceased climbed over the tree and fell down accidentally and sustained injuries and it has got to be taken into account. In order to substantiate this contention, the learned counsel for the appellant relied on Ex.P.5, the copy of the accident register issued by P.W.7, the Doctor of the Government Hospital, Ramanathapuram. According to the Doctor, the deceased was taken to the hospital at about 4.20 p.m., i.e. within 20 minutes from the time of occurrence. It is also stated that he fell down from the Vagai tree and sustained injuries. It is pertinent to point out that the deceased was taken to the hospital by P.W.3, who is the mother of the deceased and the wife of the accused. It is needless to say that in a given situation, one cannot expect the wife to give the statement against the interest of her husband. Though it was well within her knowledge that it was the accused, who attacked her son with a stick atthe time of occurrence, she has given a contra statement that the deceased fell down from the Vagai tree and sustained injuries. Hence, no importance could be attached to her evidence. 13. It is true, there was some delay noticed, but the delay, as could be seen, remained explained by continuity of circumstances. The occurrence has taken place at about 4.00 a.m. on 7. 2003. The deceased was taken to the Government Hospital, Ramanathapuram and then, he was taken to the Rajaji Government Hospital, Madurai, where he died at about 3.30 p.m. on 17. 2003. Thereafter, a message was sent to the police station. The occurrence has taken place at about 4.00 a.m. on 7. 2003. The deceased was taken to the Government Hospital, Ramanathapuram and then, he was taken to the Rajaji Government Hospital, Madurai, where he died at about 3.30 p.m. on 17. 2003. Thereafter, a message was sent to the police station. It is to be pointed out that so long as the fact that it was a medico legal case and it was not brought to the notice of the police officer by the medical officer concerned, one cannot expect the police to come into the picture. In the instant case, there was no information given to the police by the Doctor either at Government Hospital, Ramanathapuram or at Rajaji Government Hospital, Madurai. P.W.1, the daughter-in-law of the accused and P.W.3, the wife of the accused were not prepared to bring the matter to the notice of the police and they were keeping calm till the death of the deceased and thereafter, it was brought to the notice of the police by P.W.1, which would be quite evident from her conduct. Hence, in a given case like this, merely because there was some delay in bringing the matter to the police, the case of the prosecution, if it is true, cannot be rejected. As could be seen, in the instant case, the evidence of P.Ws.1 and 2 was corroborated by the medical evidence and thus, without any impediment, it could be recorded that it was the accused, who beat his son with a stick M.O.1 and caused his death. 14. Now, coming to the question of the nature of the act of the accused, this Court is able to see sufficient force in the contention of the learned counsel for the appellant. Even as per the prosecution case, P.W.1s bangles wearing ceremony was scheduled to take place and the deceased, who is the husband of P.W.1, demanded money from the accused, but the accused did not give money and there was a wordy dual, in which the deceased pushed his father down and immediately, being provoked by the same, the accused took the stick found nearby and attacked his son. In the instant case, the stick was not a dangerous weapon and being provoked by the circumstances, namely the deceased pushed him down, the accused attacked the deceased with the stick. In the instant case, the stick was not a dangerous weapon and being provoked by the circumstances, namely the deceased pushed him down, the accused attacked the deceased with the stick. Thus, it would be quite clear that following the exchange of words and the wordy dual, being provoked by the circumstances, the accused took the stick, attacked the deceased and caused his death. Under these circumstances, the act of the accused was neither intentional nor pre-meditated, but at the same time, he should have got the knowledge that by attacking with the stick on the head, it is likely to cause death. Hence, the act of the accused would attract the penal provisions of Section 304(II) IPC and awarding punishment of 5 years RI would meet the ends of justice. 15. Accordingly, the conviction and sentence imposed on the appellant by the trial court under Section 302 IPC are modified, and instead, the appellant is found guilty under Section 304(II) IPC and is sentenced to undergo 5 years RI. The period of sentence already undergone by the appellant is ordered to be given set off. The fine amount imposed by the trial court under Section 302 IPC shall be treated as fine amount imposed under Section 304(II) IPC. 16. In the result, with the above modification in conviction and sentence, this criminal appeal is dismissed. 17. Mr.B.Pugalendhi, Amicus curiae counsel is entitled to get remuneration from the Legal Aid, Madurai.