Judgment :- V. Periya Karuppiah, J. This appeal is directed against the judgment made in S.C.No.289 of 2004 dated 211. 2004 by the learned 1st Additional Sessions Judge, Coimbatore convicting the accused under Section 302 I.P.C. and sentencing him to undergo life imprisonment and also to pay a fine of Rs.1,000/- in default to undergo three months simple imprisonment. 2. The charge against the accused is that on 11. 2004, when the accused, Rajendran (deceased), Rangaraj and Madhiazhagan, whose avocation is painting, were returning after collecting the daily wages of the said Rajendran and on the way consumed liquour from and out of the wages of Rs.150/- earned by Rajendran and in order to consume some more liquour, the accused took a sum of Rs.50/- from the pocket of the deceased Rajendran and consumed liquour; that thereafter when the accused travelled as a pillion rider in the carrier of the cycle rode by Rajendran and the deceased travelled as a pillion rider in the carrier of the cycle rode by Madhiazhagan towards their village, at about 6.00 p.m., at Maniakarapalayam, in front of Sri Venkateswara Mill, as the deceased Rajendran scolded the accused for grabbing his money and consuming liquour, the accused, in a fit of anger, with the intention to cause death, attacked the deceased Rajendran with his hands severely and caused injuries to most part of the body of the deceased Rajendran and then pushed him against a fenced pillar stone and then pushed him in the tar road and caused fracture to his ribs, as a result of which he died on the same day at 11.00 p.m. at his house and that the accused had committed the offence punishable under Section 302 I.P.C. 3. The accused denied the charge and hence the trial commenced. During the trial, the prosecution has examined P.Ws.1 to 13 and marked Exs.P.1 to P.25 and material objects 1 to 4. On the side of the accused, none was examined nor any document was filed. 4. The case of the prosecution as put forth by its witnesses are as follows: .(a) P.W.1 is the father of the deceased Rajendran and P.W.2 and P.W.3 viz., Rangaraj and Madhiazhagan are the persons who accompanied the deceased at the time of the incident. .(b) According to P.W.1, on 11. 4. The case of the prosecution as put forth by its witnesses are as follows: .(a) P.W.1 is the father of the deceased Rajendran and P.W.2 and P.W.3 viz., Rangaraj and Madhiazhagan are the persons who accompanied the deceased at the time of the incident. .(b) According to P.W.1, on 11. 2004, the deceased went to one Velusamy Maistrys house at Govindanaicken palayam for painting work and did not return till 10.00 p.m. At about 10.15 p.m., P.W.2 who accompanied the deceased Rajendran came and informed P.W.1 that his son fell down from the cycle in intoxicated condition and that he accommodated him on the way near Housing Board Unit. Immediately, P.W.1, his wife and one Sambandhi Ammal went to the said place, where the deceased Rajendran was blabbering something. When they asked as to what had happened, he was not able to speak, but he said in action that it was paining. Thereafter, they brought him to their house and made him to lie down for a while. On seeing the blood coming out from his nose and mouth, they took him in an auto driven by P.W.6 to Srinivasa Hospital at NGOs Colony, where Dr. Srinivasan – P.W.9 examined him and declared dead. Thereafter, P.W.1 brought the body of his son to his home. (c) On the next day, when the shirt of the deceased was removed to bathe the body before cremation, some minor injuries and blood were found on his body. On seeing that, P.W.1 enquired P.Ws.2 and 3, who in turn informed that the accused beat him and since the accused requested them not to disclose the same to anyone, they did not disclose about it on the previous night. Thereafter, on ascertaining the entire fact from P.Ws.2 & 3, P.W.1 made a complaint to the police. .(d) P.Ws.2 & 3 would speak about the incident as narrated in the charge and they would further say that during the occurrence, P.W.4, a co-worker who came behind them questioned as to why they were fighting in a drunken stage and also pacified them. P.W.5, the watchman of Sri Venkateswara Mill also witnessed the above incident. Thereafter, P.Ws.2 & 3 tried to take the deceased Rajendran to his home in a cycle. Since they could not do it, they made him to sit near Housing Board Unit. P.W.5, the watchman of Sri Venkateswara Mill also witnessed the above incident. Thereafter, P.Ws.2 & 3 tried to take the deceased Rajendran to his home in a cycle. Since they could not do it, they made him to sit near Housing Board Unit. At that time, the accused requested P.Ws.2 & 3 not to inform that he beat the deceased Rajendran and accordingly P.Ws.2 & 3 also acted so. Thereafter, they went to their respective houses. On the next day on hearing that the deceased Rajendran died, they came to P.W.1s house and on enquiry by P.W.1, they disclosed everything. Only thereafter, a complaint has been made by P.W.1 at 11.00 a.m. .(e) P.W.12-Head Constable, Periyanaickenpalayam Police Station reduced the statement of P.W.1 into writing and obtained the signature of P.W.1 in the complaint-Ex.P.1. Then he registered a case in Cr.No.31 of 2004 for the offence under Section 302 I.P.C., prepared F.I.R. - Ex.P.17 and sent the same along with the complaint to the Judicial Magistrate No.6, Coimbatore. He also forwarded the copies of the complaint and the F.I.R. to the Inspector of Police-P.W.13 and higher officials. .(f) P.W.13 on receipt of the intimation, came to the police station and took up the case for investigation. He went to P.W.1s house and saw the body of the deceased Rajendran. There he prepared observation mahazar-Ex.P.8 in the presence of P.W.7 and one Sivakumar and also prepared rough sketch Ex.P.18. He recovered the dresses (M.Os.1 to 3) worn by the deceased Rajendran from P.W.1 under Form-95 (Ex.P2) and obtained the signatures from P.W.1 and 7 in the mahazar. In the presence of panchayatdars and witnesses, he held inquest over the body of the deceased. The inquest report is Ex.P.19. At 2.30 p.m., he sent the body of the deceased for postmortem through the Head Constable to the Coimbatore Government Hospital with requisition Ex.P.10. .(g) P.W.10, Dr. Menakasekhar, Tutor in Forensic Medicine, Coimbatore Medical College Hospital, on receipt of the requisition for postmortem conducted autopsy on 11. 2004 at 10.15 a.m. She found the following injuries on the body of the deceased, which are incorporated in the postmortem certificate-Ex.P11 issued by her: ANTEMORTEM INJURIES: Abrasions with reddish brown colour base. .(g) P.W.10, Dr. Menakasekhar, Tutor in Forensic Medicine, Coimbatore Medical College Hospital, on receipt of the requisition for postmortem conducted autopsy on 11. 2004 at 10.15 a.m. She found the following injuries on the body of the deceased, which are incorporated in the postmortem certificate-Ex.P11 issued by her: ANTEMORTEM INJURIES: Abrasions with reddish brown colour base. -4x2 cms right upper eyelid -5x2 cms right upper cheek -7x2-1 cms right submandibular region -4x2-1 cms right front of upper shoulder -Multiple punctured abrasions involving over an area of 9x8 cms right lateral lower chest. -3x0.75cms 1 x 0.75cm over right lateral upper hip -5x2 cms right lateral upper thigh -2x1 cms 1x1 cm, 2x2 cms, 1x0.5 cm involving back of right elbow -2x1 cms, 0.5x0.5 cm involving back of right elbow -2x1 cms, 0.5x0.5 cm involving right back of upper forearm. -1x1 cm, 0.5x0.5 cm dorsum of right 3rd & 4th finger. -3x2.5 cms on the medial aspect of right big toe -Vertically oblique 32x6-3 cms over left back of shoulder upto lower two third of chest. -3.5 x 0.75 cms left back of upper hip -0.75x0.5 cm two in number dorsum of left hand -0.75x0.75 cm, 0.5 x 0.5 cm, 2 x 0.75 cms, 1x1 cm, 0.75 x 0.5 cm involving left back of elbow up to left upper forearm. -2x2 cms, 1x1 cm, 0.5 x0.5 cm involving left anterior knee. -0.75 cmx 0.75 cm, 0.5 x 0.5 cm over left second and third toe. INTERNAL INJURIES: -Right pleural cavity contains 175 ml of fluid blood with clotted blood weighing 75 gms. Right side ribs 4th to 8th fractured posterior aspect and 4th & 5th intercostal muscles bruising anteriorly. -Right lung lacerations of 2x0.75x0.5 cms, 1.75x0.75x0.5 cms and 3x1x0.75cms involving upper, middle, lower and posterior aspect of the lobes. Left side intercostal muscles bruising 3rd to 5th space noted. -Paracervical vertebral contusion of c5 and c6 noted. -Subscalpal contusion right occipitoparietal region with interscalp contusion 3x2 cms & 1x1 cm over right posterior parietal region. (h) P.W.13 in continuation of the investigation went to the scene of occurrence i.e. near Sri Venkateswara Mill at Maniyakarapalayam at 3.00 p.m. on the same day and prepared observation mahazar Ex.P.8 and rough sketch Ex.P.20 in the presence of P.W.7 and Sivakumar. He examined P.Ws.1 to 6, 9 and other witnesses and recorded their statements. He arrested the accused on 11. He examined P.Ws.1 to 6, 9 and other witnesses and recorded their statements. He arrested the accused on 11. 2004 at 12.10 hours at Narasimanaickenpalayam-Poochur Road in the presence of P.W.8, a chance witness and one Selvaraj. At that time, the accused gave his voluntary confession statement. Thereafter, he took the accused to police station accompanied by P.W.8 and Selvaraj, where he recovered the blood stained shirt of the accused – M.O.4 under mahazar Ex.P.9. He examined the witnesses available then and there and recorded their statements. Thereafter, he remanded the accused to judicial custody. He also sent the recovered objects to the Court and gave requisition-Ex.P.21 to the Court to send the same for chemical analysis, which was complied with by the Court under Ex.P.22. Ex.P.23 is the Biological Report and Exs.P.24 and 25 are the Serologists Report. On 11. 2004, he examined P.W.10, the doctor who conducted postmortem. P.W.10, after receipt of the Viscera Report, gave her final opinion-Ex.P.13 that the deceased would appear to have died of shock and hemorrhage due to thoracic injuries sustained by him. On 21. 2004, P.W.13 gave requisition to the Chief Judicial Magistrate, Coimbatore to record the statement of witnesses under Section 164 Cr.P.C. The requisition and the order of the CJM, CBE are marked as Ex.P.14 series. The summons issued to P.Ws.1-3, Velusamy and P.W.4 are marked as Ex.P.15. The 164 Cr.P.C. statements of the above witnesses recorded by P.W.11-Judicial Magistrate No.V, Coimbatore are marked as Exs.P.3 to P.6. On completing the investigation, he filed a final report against the accused under Section 302 I.P.C. 5. When the accused was questioned under Section 313 Cr.P.C. with regard to the incriminating circumstances available in evidence, he exhibited his ignorance for almost for all the questions, but accepted that he went along with the deceased and P.Ws.1 & 2 on the date of occurrence and consumed liquor for Rs.150/-and also submitted that it is a false case. 6. The trial Court, considering the oral and documentary evidence available on record, came to the conclusion of finding the accused guilty under Section 302 I.P.C. and convicted and sentenced him as aforesaid. 7. Heard the learned counsel for the appellant, Mr. P.M. Duraisamy and the learned Addl. Public Prosecutor, Mr. V.R. Balasubramaninam. .8. 6. The trial Court, considering the oral and documentary evidence available on record, came to the conclusion of finding the accused guilty under Section 302 I.P.C. and convicted and sentenced him as aforesaid. 7. Heard the learned counsel for the appellant, Mr. P.M. Duraisamy and the learned Addl. Public Prosecutor, Mr. V.R. Balasubramaninam. .8. The case of the prosecution is that the appellant/accused, the deceased Rajendran and the witnesses Rangaraj and Madhiazhagan were working as painters under a Maistry viz., Velusamy. On 11. 2004, when all the four were returning after the deceased Rajendran was paid with Rs.150/-towards his wages by Maistry Velusamy at about 6.00 p.m. they consumed liquour with the said money. Since the accused was not satisfied with the quantity of the liquour consumed, he took a sum of Rs.50/- from the pocket of the deceased Rajendran and had liquour. Thereafter, they were returning in two cycles one driven by Rangaraj, in which the accused was the pillion rider and another by Madhiazhagan, in which the accused Dhanapal was the pillion rider. When they were riding the bicycle near Sri Venkateswara Mill, Periyamaniakarpalayam, the deceased Rajendran was very much abusing and scolding the accused for taking Rs.50/- from his pocket without his concern. The accused who was enraged heavily on the abusive language of the deceased Rajendran gave a punch on his cheek with his hands and another punch on his neck with terrific force and apart from that he pushed the said Rajendran against a stone near the Mill and the said Rajendran fell on the stone and thereafter, the accused had lifted the said Rajendran by pulling his shirt and pushed him over the tar road and the Rajendran fell on the tar road and sustained serious injuries. At that time, one Gurusamy came and pacified them asked them to go home. Thereafter, they made the said Rajendran to sit on the carrier of the cycle of Rangaraj P.w.2 and took him to his house. P.W.2 had reported to the parents of the Rajendran that he fell down from the cycle due to inebriated condition caused by consuming liquour. Thereafter, the deceased Rajendran took ill due to the injuries sustained by him on the assault made by the accused and died when he was admitted in the hospital for treatment. P.W.2 had reported to the parents of the Rajendran that he fell down from the cycle due to inebriated condition caused by consuming liquour. Thereafter, the deceased Rajendran took ill due to the injuries sustained by him on the assault made by the accused and died when he was admitted in the hospital for treatment. Thereafter only the cause of death was known to the parents of the deceased Rajendran through the witnesses Rangaraj and Madhiazhagan and only then they gave complaint to the police and therefore the accused is liable to be punished under Section 302 I.P.C. .9. The learned counsel for the accused/appellant submitted in his arguments that the injuries said to have been sustained by the deceased Rajendran are not serious and admittedly, the deceased was fully drunk and in the meelee, there was a scuffle between the deceased and the accused and in the meelee, the deceased Rajendran himself fell down under the influence of the alcohol and dashed against hard surfaces and sustained injuries and the accused was not responsible for causing such injuries. Moreover, he would submit in his argument that the delay in giving complaint to the police was not explained by the prosecution would be fatal to the case and that would also probabilise that the injuries sustained by the deceased Rajendran due to his falling on the hard surface in an intoxicated condition was made use of to incriminate the accused to the said case. Further, he would argue that it is highly suspicious when the witnesses did not complain the said injuries sustained by the Rajendran to anyone especially when P.W.2 dropped the deceased Rajendran at his house on the fateful day, which would go a long way to show that there was no serious injuries to the accused and the deceased Rajendran would have sustained serious injury by falling over the hard surface either at his house or some other place after the alleged occurrence. He would further submit that the lower Court ought to have taken the evidence adduced by the alleged eye witnesses viz., P.Ws.2 to 5 are not sufficient to hold the accused guilty of the offence under Section 302 I.P.C. He had also submitted in his argument that the learned Sessions Judge even if convinced regarding the commission of offence by the accused as narrated by the prosecution, he ought not to have convicted the accused under Section 302 I.P.C. but the same would have been attracted only under Section 304 either Part I or Part II I.P.C. Therefore, the judgment of the lower Court in convicting and sentencing the accused under Section 302 I.P.C. has to be set aside and the appeal be allowed and thereby the appellant may be acquitted. .10. The learned Additional Public Prosecutor would submit in his argument that the delay in giving complaint by the father of the deceased was suitably explained by him by stating that since he did not know about the cause of the injuries as the witnesses Rajendran and Madiazhagan did not tell him as to what had happened owing to the threat made by the accused and when the father of the deceased Rajendran had found the injuries on the body of Rajendran on the next day, he questioned P.Ws.2 & 3 and only at that time, the entire episode had been told by P.Ws.2 & 3 and thereafter he preferred complaint to the police and therefore, there is no delay in giving the complaint or registering the case. The learned Additional Public Prosecutor would also submit in his argument that the evidence of P.Ws.2 to 5 would categorically show that the accused had attacked over the deceased Rajendran when they were returning in the bicycle of P.Ws.2 and 3 by sitting in the carrier of the cycles near Sri Venkateswara Mill, the scuffling in between the deceased Rajendran and the accused went on and in the said quarrel, the accused had inflicted a series of punches on the cheek of Rajendran and thereafter on the neck and he had also pushed the said Rajendran over a stone and thereby he had hit against the stone on his back and Thoracic region Thereafter, the accused had also pushed the said Rajendran on the tar road and he fell down with force and he also sustained injuries and there was bleeding through that injuries and at that time, P.W.4 came and compromised the matter and thereafter they left the said place. This evidence has been corroborated and spoken by all the witnesses cogently and consistently and the medical evidence which was produced through P.W.10 would go a long way to show that the injuries sustained by the deceased Rajendran was also corroborated to the evidence of P.Ws.2 to 5. He would further submit in his argument that the opinion given by P.W.10 in Ex.P.13 would also show that the injuries sustained on the body of the deceased Rajendran were the cause for the death of Rajendran. He had also submitted in his argument that the arrest of the accused and the confession given by him and the recovery of blood stained clothes would also go a long way to show that the accused had involved in the commission of crime and also sustained blood stains on his shirt. He had also submitted in his argument that the arrest of the accused and the confession given by him and the recovery of blood stained clothes would also go a long way to show that the accused had involved in the commission of crime and also sustained blood stains on his shirt. The scientific evidence regarding the blood stains available in the shirt of the accused which was recovered as M.O.4 and the blood stains in the clothes of the deceased Rajendran viz., M.Os.1 & 2 were found to be of human blood and therefore, this circumstance would also warrant that the accused had committed the death of Rajendran and thereby he is liable to be punished under Section 302 I.P.C. He would also point out that the sequence of injuries caused by the accused over the deceased Rajendran as spoken by the eye witnesses would show that the accused had got serious intention to kill the deceased Rajendran and therefore, the lower Court is correct in coming to the conclusion of convicting the accused under Section 302 I.P.C. and the offence under Section 304-I or II I.P.C. would not be attracted for the offence committed by the accused. Therefore, he prayed for the dismissal of the appeal confirming the conviction and sentence passed by the lower Court. 11. We have given anxious thought and consideration over the arguments advanced on either side and perused the materials available on record. .12. The complaint-Ex.P.1 was given by the father of the deceased Rajendran on 11. 2004, a day after the date of occurrence and the father of the deceased was examined as P.W.1. He would explain in his evidence that the co-worker viz., Rangarajan examined as P.W.2 had dropped Rajendran at his house on 11. .12. The complaint-Ex.P.1 was given by the father of the deceased Rajendran on 11. 2004, a day after the date of occurrence and the father of the deceased was examined as P.W.1. He would explain in his evidence that the co-worker viz., Rangarajan examined as P.W.2 had dropped Rajendran at his house on 11. 2004 stating that he had fallen down from the cycle and sustained injuries and therefore, he did not take it much and when the said Rajendran grew more seriousness of his injuries and could not speak about the incident that had happened, he had taken his son Rajendran to hospital through the auto rickshaw of P.W.6 and there the doctor told that his son Rajendran was already dead and thereafter he took the body of his son to his house and on the next day, when he enquired P.W.2 and P.W.3, co-workers, who had accompanied his son on seeing the injuries all over the body after the shirt of the deceased was removed, the entire episode has been told by P.W.2 and thereafter, he had given the complaint. The same versions were spoken by P.Ws.2 and 3 also and therefore, the explanation submitted by P.W.1 in his evidence is acceptable and the delay caused in giving the complaint to the police is properly explained and there is no difficulty in registering the case. 13. The evidence of P.Ws.2 & 3 would go to show that the deceased Rajendran was seriously attacked by the accused when they were returning after consuming liquour in front of Sri Venkateswara Mill at Periyanaickenpalayam and the overt acts of the accused were also spoken to by each of the witnesses viz., P.Ws.2 & 3 specifically and they have clearly mentioned about the injuries caused by the accused over the body of the deceased Rajendran. Apart from the evidence of P.Ws.2 3, and 4, the watchman P.W.5 had also spoken about the incident in which the accused had attacked over the deceased Rajendran and P.W.4, who was working under Maistry Velusamy had spoken about the payment of Rs.150/- by Velusamy to Rajendran and thereafter, the return of all the four persons in two bicycles and the quarrel erupted in between the deceased Rajendran and the accused. So all these evidence adduced on the side of the prosecution have corroborated very promptly and there is no discrepancy in their evidence. 14. So all these evidence adduced on the side of the prosecution have corroborated very promptly and there is no discrepancy in their evidence. 14. The injuries sustained by the deceased Rajendran was clearly spoken to by the medical evidence P.W.10, who conducted autopsy on the body of the deceased Rajendran. It is also opined by P.W.10 that the cause of death of Rajendran would have been due to the shock and hemorrhage due to the injuries sustained by him on his thoracic region. The final opinion given by P.W.10 is produced as Ex.P.13. On a careful perusal of the post mortem certificate Ex.P.11 and Ex.P.13, we could see that the deceased person had sustained injuries and due to the said injuries the death has been caused. Apart from the above, the chemical examination also disclosed that the blood stains contained in the shirt belonging to the accused M.O.4 is found to have contained human blood and it was seized when he was arrested on the next day by the police and while he was confessing about the occurrence, the shirts worn by him was seized under Form 95. All these oral evidence and the circumstantial evidence would go a long way to show that the injuries sustained by the Rajendran were caused by the accused in the occurrence as put forth by the prosecution. There is no reason for this Court to reject the evidence of the prosecution witnesses, which are cogent, consistent and corroborative and the prosecution has proved its case beyond all reasonable doubt. 15. Let us advert now to the argument advanced by the learned counsel for the appellant alternatively for the lesser punishment to be awarded under Section 304-I or 304 II IPC. 15. Let us advert now to the argument advanced by the learned counsel for the appellant alternatively for the lesser punishment to be awarded under Section 304-I or 304 II IPC. His contention is that the injuries said to have caused by the accused against the deceased Rajendran were inflicted only upon the wordy quarrel and on enraging upon the abusive language used by the deceased Rajendran and there is no intention to kill the deceased in the said scuffling or quarrel erupted in between them and therefore, the offence said to have been committed by the accused cannot be attracted under Section 302 I.P.C. He would categorically submit in his argument that since there was no intention to cause death by inflicting injuries and the accused and the deceased Rajendran were in a drunken stage, there was no intention on the part of the accused to commit the offence and therefore, the appropriate Section that would attract in this case is only 304-II I.P.C. 16. When we consider the argument advanced by the learned counsel for the appellant, we could see that the injuries sustained by Rajendran were nearly 20 in number. The cause for fight in between them was that the deceased Rajendran was abusing the accused for taking Rs.50/- from his pocket. The accused was conscious enough to be enraged upon the abusive language and he had attacked the deceased Rajendran and caused 20 injuries on his body. If it is one or two injuries and the deceased Rajendran was succumbed to those injuries, immediately on receipt of the blows from the accused, it could be considered that the case could be attracted under Section 304-I I.P.C. So far as this case is concerned, the accused had continuously and very forcibly attacked on the deceased Rajendran with his hands and pushed him against the stone and on the tar road and caused multiple injuries all over the body of Rajendran, which cannot be drawn under the provisions of 304-II I.P.C. but would be attracted under Section 304-I I.P.C. Therefore, we are of the considered view that the accused is liable to be convicted only under Section 304-I I.P.C. and not under Section 302 I.P.C. The lower Court ought to have considered these circumstances and ought to have convicted the accused under Section 304-I I.P.C, but had failed to do so. Therefore, it has become necessary for this court to set aside the conviction under Section 302 I.P.C. passed by the lower court and to modify the conviction and sentence passed under Section 302 .I.P.C. to that of 304-I I.P.C. In the result, the appeal is partly allowed and the conviction and sentence passed by trial Court in S.C.No.289 of 2004 for the offence under Section 302 I.P.C. is modified to one under Section 304-I I.P.C. and accordingly, the accused/appellant is convicted for the offence under Section 304-I I.P.C. and sentenced to undergo R.I for seven years and to pay a fine of Rs.1000/-, in default to undergo three months S.I. The appellant, who was granted bail by this Court is directed to surrender before the Court forthwith. The learned Sessions Judge is also directed to take steps to secure the accused to undergo the remaining period of sentence.