Judgment :- This Criminal Appeal has arisen out of the judgment passed by the I Additional District and Sessions Judge, Dharmapuri District at Krishnagiri, dated 23.01.2003 in S.C.No. 89 of 2002, convicting the appellant/accused under Section 304 (ii) IPC and sentencing him to undergo seven years rigorous imprisonment. 2. The case of the prosecution in a nut-shell is as follows:- (i) PW1-Krishnans brother is deceased Narasimhan. PW1-Krishnan is residing along with his sister/PW2-Rani and deceased Narasimhan. PW1 is cultivating the land of one Krishnan and Madhappan, on lease basis. During the time of occurrence, he had taken the license of coconut thope and he was doing coconut business. The accused-Suresh is running a tailoring shop. For the coconut business, PW1-Krishnan has obtained a loan of Rs.1500/- from the accused and repaid Rs.1000/-. The balance due is Rs.500/-. (ii) On 16.06.2000, at about 5.00 p.m., PW1-Krishnan and his sister/PW2- Rani were doing agricultural work at the leasehold property, at that time, the appellant/accused is alleged to have came there and demanded the balance amount of Rs.500/-. Further, the accused had slapped PW1 on his cheek and he threatened that if he did not pay the balance amount, he will beat him and admit him in the hospital. That factum has been intimated to deceased Narasimhan, who is PW1s elder brother. On 17.06.2000 at 10.00 a.m., PW1-Krishnan and deceased Narasimhan went to the tailoring shop of accused and questioned him about the incident that had taken place on 16.06.2000 at 5.00 p.m., as a result of which, there arose a wordy altercation between deceased Narasimhan and accused. At that time, the accused is alleged to have went inside his tailoring shop and brought MO1-iron pipe and assaulted the deceased Narasimhan on his rightside ear, rightside eye and backside of head and he also kicked him with his foot, due to which, deceased Narasimhan has sustained bleeding head injuries and that has been witnessed by PW3-Mallappan, PW4-Pugalanthi and PW8-Krishnan. Then, the accused kept the iron pipe in his shop. The deceased Narasimhan died on the spot itself. (iii) PW10-Balakrishnan, Inspector of Police, received a complaint at 1.00 p.m. and registered a case in Cr.No. 381 of 2000 for the offence under Section 302 IPC. The printed F.I.R. is Ex.P12. Then, the accused kept the iron pipe in his shop. The deceased Narasimhan died on the spot itself. (iii) PW10-Balakrishnan, Inspector of Police, received a complaint at 1.00 p.m. and registered a case in Cr.No. 381 of 2000 for the offence under Section 302 IPC. The printed F.I.R. is Ex.P12. Then, he despatched the same to Judicial Magistrate, Krishnagiri, and he had taken up the matter for investigation and went to the place of occurrence at 2.15 p.m. and in the presence of PW5-Anbalagan, Village Administrative Officer and Village Mineal preferred an observation mahazar-Ex.P2 and drawn the rough plan Ex.P13. The ordinary earth-MO3 and blood stained earth-MO2 were seized under Ex.P3-Seizure Mahazar. From 3.00 p.m. to 6.00 p.m. he conducted the inquest and the inquest report is Ex.P14 and he handed over the body to PW9-Lakshmanan, Police Constable, along with requisition-Ex.P6 to conduct the autopsy. (iv) PW6- Dr.V.Shanmugam received the requsition-Ex.P6 and he conducted the autopsy and gave the post-mortem certificate-Ex.P7 pointing out the injuries :-"External Injuries: 1) Right eye is swollen and congested. 2) A lacerated injury 7 x 1 cm upper left ear and mastoid area. 3) A contusion 5 x 5 cm over left cheek and posterior area. Internal Examination: Heart: 150 grams empty. Lungs: Right 350 grams left 300 grams C/s. Pale, Stomach empty. Liver 1100 grams C/s . Pale, Spleen 80 grams C/s. Pale, Kidney each 90 grams C/s. Pale, Bladder empty, Skull M shaped fracture involving both temporal and parietal bones in the middle of skull. Subdural Haemorrhage present. Brain 1200 grams. Both temporal lobes are contused." The doctor has opined that the deceased appear to have died of shock and haemorrhage, injury to vital organ brain and would have died about 18 to 24 hours prior to post-mortem. After autopsy, the body of deceased Narasimhan was handed over to the relatives. He handed over the belongings of deceased Narasimhan, viz., MO4-blood-stained shirt, MO5-blood-stained lungi, MO6-shorts and MO7-Cord pieces, to PW10-Balakrishnan, Inspector of Police. (v) On 18.06.2000 at 12.00 p.m., PW10-Balakrishnan, Inspector of Police, arrested the accused at Seelapalli Bus Stand in the presence of PW5-Anbalagan, Village Administrative Officer and another, who was identified by PW1-Krishnan and at that time, he gave a confession. The admissible portion is Ex.P4. He had taken MO1-iron pipe from his tailoring shop and handed over the same to PW10, which was seized under Ex.P5-Seizure Mahazar. The admissible portion is Ex.P4. He had taken MO1-iron pipe from his tailoring shop and handed over the same to PW10, which was seized under Ex.P5-Seizure Mahazar. Then, PW10 returned to the Police Station along with accused and material objects. Then, he sent the material objects under Form-95 to the Court. He also gave a requisition-Ex.P8 for sending the material objects to chemical examination. The letter of Judicial Magistrate, Krishnagiri, is Ex.P9. The chemical analysts report is Ex.P10 and serologist report is Ex.P11. After examining the other witnesses, he concluded the investigation and filed the chargesheet against the accused under Section 302 IPC. (vi) The learned Sessions Judge after following the formalities framed the charge against the accused under Section 302 IPC. He pleaded not guilty. After the completion of the evidence on the side of prosecution viz., PWs 1 to 10 and Exs.P1 to P14 and MOs 1 to 7, the accused was questioned under Section 313 Cr.P.C. as to the incriminatory circumstances found in the evidence of the prosecution witnesses and the accused flatly denied them as false. The learned Sessions Judge after considering the oral and documentary evidence came to the conclusion that the accused is guilty under Section 304 (ii) IPC and convicted him under Section 304 (ii) IPC and sentenced him to undergo imprisonment as indicated above. 3. Challenging the conviction and sentence passed by the Sessions Judge, the learned counsel for the appellant submits that PW1-Krishnan is the younger brother of deceased Narasimhan and PW2-Rani is the sister of deceased Narasimhan. PW2 is not supporting the case of prosecution. PW3-Mallappan and PW4-Pugalanthi, who are the alleged eye witnesses, also turned hostile. Even PW1-Krishnan and PW8-Krishnan, in chief-examination, they supported the case of prosecution, but, during the cross-examination, they have not supported the case of prosecution. The Sessions Court has not considered the cross-examination, but, only on the basis of the chief-examination convicted the accused under Section 304 (ii) IPC. Further, he submitted that there is a contradiction between the ocular and medical evidence. In the post-mortem certificate-Ex.P7, the Doctor has stated that there is a "M shaped fracture involving both temporal and parietal bones in the middle of skull". But, MO1-iron pipe will not cause such an injury. That factum has not been considered by the Sessions Court. Further, he submitted that there is a contradiction between the ocular and medical evidence. In the post-mortem certificate-Ex.P7, the Doctor has stated that there is a "M shaped fracture involving both temporal and parietal bones in the middle of skull". But, MO1-iron pipe will not cause such an injury. That factum has not been considered by the Sessions Court. He further submitted that if the accused is guilty, he is guilty only under Section 325 IPC and not under Section 304 (ii) IPC. After the deceased Narasimhan fell down, then only, the appellant/accused assaulted him. Since, the deceased Narasimhan fell down, the head injuries have been caused and therefore, he is guilty only under Section 325 IPC. To substantiate the same, he relied upon the decisions reported in 1997 Crl.L.J. 226, State of Karnataka v. Diwakara Bhat; 1999 AIR SCW 2215, Mohammad @ Biliya vs. State of Rajasthan; and 1996 Crl.L.J. 1055, Sitaram v. State of Rajasthan, and submits that the appellant/accused is only 21 years old. Due to the grave and sudden provocation, the appellant/accused suddenly pierced the weapon, which the Adivasis generally have with them, in the chest of deceased Narasimhan, which caused him fatal injury and therefore, the appellant/accused is entitled to benefit of Probation of Offenders Act. Hence, he prayed for the acquittal of the appellant/accused. 4. The learned Government Advocate (Criminal Side) would contend that the evidence of PW1-Krishnan and PW8-Krishnan, have clearly proved that the appellant/accused caused head injury to the deceased Narasimhan, which leads to his death instantaneously. So, there is no discrepancy in the ocular and medical evidence, even though, the other witnesses PW2-Rani, PW3Mallappan and PW4-Pugalanthi, have turned hostile. The evidence of PWs 1 and 8 are sufficient to sustain the conviction passed by the Sessions Court. Hence, he prayed for the dismissal of the appeal. 5. The admitted fact is that the deceased Narasimhan and PW1-Krishnan and PW2-Rani are brothers and sister. It is also true that PW1-Krishnan has borrowed a sum of Rs.1500/- and repaid a sum of Rs.500/-and the balance amount repayable is Rs.500/-. On the fateful day viz., on 16.06.2000, at 5.00 p.m., the appellant/accused went to the leasehold property, where, PW1-Krishnan and his sister/PW2-Rani were doing agricultural work and demanded the balance amount of Rs.500/-. PW1-Krishnan has intimated the same to deceased Narasimhan. On the fateful day viz., on 16.06.2000, at 5.00 p.m., the appellant/accused went to the leasehold property, where, PW1-Krishnan and his sister/PW2-Rani were doing agricultural work and demanded the balance amount of Rs.500/-. PW1-Krishnan has intimated the same to deceased Narasimhan. On 17.06.2000 at 10.00 a.m., PW1-Krishnan and deceased Narasimhan went to the tailoring shop of accused and questioned him about the incident that had taken place on 16.06.2000 at 5.00 p.m., as a result of which, there arose a wordy altercation between deceased Narasimhan and accused. At that time, the accused is alleged to have went inside his tailoring shop and brought MO1-iron pipe and assaulted the deceased Narasimhan. It is true that PW3-Mallappan and PW4-Pugalanthi, turned hostile. PW2Rani is not an eye witness. 6. Now this Court has to consider the evidence of PW1Krishnan and PW8-Krishnan. 7. PW1 was examined on 19.08.2002. On that date, he was supporting the case of prosecution. On that date, he was not cross-examined. On 16.11.2002, when, PW1 was cross-examined, he has given a total go-bye to his earlier version. The learned counsel has mainly focussed upon the cross-examination of PW1, wherein, PW1 had gone to the extent of stating that he does not know what is written in Ex.P1. He signed the same in the Police Station. He gone to the extent of saying that he has not witnessed the occurrence and that ater receiving the news that his brother was murdered, then, he gone to the place of occurrence. After cross-examination, he was treated as hostile. 8. PW8-krishnan, who is alleged to be an eye witness, when he was examined on 20.08.2002, he supported the case of the prosecution, but, when he was cross-examined on 06.11.2002, he stated that he has not witnessed the occurrence and he had gone to the extent of saying that he was not examined by the Police. He also stated that on the date of murder of Narasimhan, the appellant/accused was taken by Police. 9. It is true that the materials available in the hostile evidence are reliable. Here, we have to consider, whether the evidence of PWs 1 and 8 are convincing and trustworthy. He also stated that on the date of murder of Narasimhan, the appellant/accused was taken by Police. 9. It is true that the materials available in the hostile evidence are reliable. Here, we have to consider, whether the evidence of PWs 1 and 8 are convincing and trustworthy. At first, when they were examined in chief, they supported the case of the prosecution, then, when the witnesses were examined on 06.11.2002, they have given a total go-bye to the earlier version, which shows that on 06.11.2002, they were won over by the appellant/accused. Here, PW8 is a third party eye witness. PW1-Krishnan is none other than the own brother of deceased Narasimhan. He had gone to the extent of saying that he does not know the contents in Ex.P1-Complaint and he is not an eye witness. In such circumstances, since, PW1 and other independent witnesses turned hostile, the evidence of PWs 1 and 8 are also not trustworthy and therefore, it is unsafe to convict the appellant/accused on the basis of the evidence of PWs 1 and 8. 10. Furthermore, the learned counsel for the appellant would submit that PW1 has stated that the appellant/accused has assaulted the deceased Narasimhan on his rightside ear, rightside eye and backside of head and he also kicked him with his foot, due to which, his brother/deceased Narasimhan, fell down. PW8, in his evidence, he has stated that the appellant/accused has assaulted the deceased Narasimhan on his right cheek, rightside ear and then on his backside of head. But, while considering the postmortem certificate-Ex.P7, in that, the Doctor has stated that "1) Right eye is swollen and congested;2) A lacerated injury 7 x 1 cm upper left ear and mastoid area; and 3) A contusion 5 x 5 cm over left cheek and posterior area. The Doctor has further stated that "Skull M shaped fracture involving both temporal and parietal bones in the middle of skull, which shows that even though PWs 1 and 8 when they were examined in chief, they have stated that the appellant/accused assaulted the deceased Narasimhan on his right side ear and eye, but the deceased Narasimhan sustained lacerated injury on the left ear and left cheek also. In such circumstances, it is true that there is a contradiction between the ocular and medical evidence. 11. In such circumstances, it is true that there is a contradiction between the ocular and medical evidence. 11. PW6-Dr.Shanmugam, when he was examined before the Court a question was posed to him as to whether MO1-iron pipe will cause such a linear injury. For that, he has given an answer stating MO1-iron pipe will cause such a linear injury, but, it depends upon the place and thing, on which, it was attacked. "TAMIL" One more suggestion was posed to him, for which, PW6-Dr.Shanmugam has answered that when a person falls down from height, such an injury is possible. Doctor has stated as follows:- "TAMIL" 12. While considering the cross-examination of PW6-Dr.Shanmugam and the evidence of PWs 1 and 8, I am of the view that there is a contradiction between the ocular and medical evidence. So, the evidence of PWs 1 and 8 are not admissible in evidence and therefore, it is not trustworthy and reliable. Even though, the death of deceased Narasimhan is homicidal, but, on the basis of the materials available on record, the prosecution has not proved that the appellant/accused is guilty under Section 304 (ii) IPC beyond reasonable doubt. Therefore, the benefit of doubt has to be given in favour of the appellant/accused and conviction and sentence under Section 304 (ii) are liable to be set aside. 13. In fine, • this Criminal Appeal is allowed. • The judgment of conviction and sentence passed by the Sessions Court against appellant/accused under Section 304 (ii) IPC, are hereby set aside. • The appellant/accused is acquitted and he is exonerated from all the charges levelled against him. • The fine amount, if paid by the appellant/accused is ordered to be refunded. The bail bond, if any executed by the appellant/accused shall stand cancelled.