Judgment :- 1. The criminal appeal arises out of the judgment of conviction and sentence dated 24.02.2003, made in S.C.No.179 of 2002 on the file of the Additional Sessions Court (Fast Track Court No.2), Gobichettipalayam, whereby the accused was convicted for the offence under Section 304(i) IPC and sentenced to undergo 7 years rigorous imprisonment and imposed a fine of Rs.1,000/-in default in payment to undergo six months simple imprisonment and he was convicted for the offence under Section 324 IPC and sentenced to undergo three months rigorous imprisonment and imposed a fine of Rs.500/- in default in payment to undergo one month simple imprisonment. 2. The respondent has filed a charge sheet against the accused for the offence under Sections 324, 302 and 506(ii) IPC, stating that on 12.01.2002 at 8.30 p.m., when the deceased Anbalagan and P.W.1 to P.W.4 were gone to see the Pariyur Car festival at Gobi bus stand, near Saravana theatre, at the time, the accused, who was riding his scooter with rash and negligent manner, dashed against P.W.2/Saravanan and due to the same, there was an wordy altercation and thereafter, the accused took the knife and stabbed Saravanan on his left hand and also stabbed the deceased on his left thigh, who came to prevent Saravanan, died in the hospital and thereby, the accused committed the aforesaid offences. 3. The case of the prosecution is as follows: (i) On 12.01.2002, at 8.30 p.m., the deceased Anbalagan and P.W.1/Vadivel, P.W.2/Saravanan, P.W.3/Saravana Kumar, P.W.4/Muthukumar were gone to see Pariyur car festival. Since the procession would have reached the place at 11.00 p.m., they were chatting near Saravana theatre in Pariyur junction at Gobi bus stand. At the time, the accused/appellant was driving his scooter/M.O.1 with rash and negligent manner and hit against P.W.2/Murugan @ Saravanan. Therefore, P.W.1 and other witnesses abused the accused. When P.W.4/Muthukumar attempted to hold the shoulder of the accused, the accused slapped him. At the time, P.W.2 questioned the accused as to how he dashed against him and also assaulted his friend, so the accused took M.O.2/knife and stabbed P.W.2 on his left hand. While the deceased Anbalagan was trying to prevent the same, the accused stabbed on his left thigh and he also threatened the other witnesses that he will kill them if they attack him. Then, he threw M.O.2/knife and fled away from the place. While the deceased Anbalagan was trying to prevent the same, the accused stabbed on his left thigh and he also threatened the other witnesses that he will kill them if they attack him. Then, he threw M.O.2/knife and fled away from the place. Immediately, P.W.1 and five others took Anbalagan to Gobi Government Hospital. P.W.3/Saravana Kumar went to Anbalagan's house to inform the same. Since the deceased was sustained stab injury and hence, the Doctors would not give treatment, they informed the hospital that he was hit by motor cycle and sustained injury (i.e.) in Road Traffic Accident. (ii) P.W.20/Dr.Ragunathan, who treated the deceased at 9.20 p.m., gave Ex.P15 Accident Register, in which, it was stated that the deceased was hit by a motor cycle at 8.30 p.m. on 12.01.2002 near bus stand and he was sustained 2 X 2 X 2 inch lacerated injury on his left upper thigh. Since his condition was very critical, he died at 11.55 a.m. and the death intimation given to the police was marked as Ex.P14. P.W.5/Murugan, who is the father of the deceased, rushed to the hospital and at 12.00 a.m., it was informed by the hospital that his son was died. (iii) P.W.2/Saravanan went to hospital in the next day morning after receiving information that Anbalagan was died and he also got treatment for the injury, which he was sustained at the time of occurrence. P.W.20/Dr.Ragunathan, who treated him, gave Ex.P16 Accident Register Copy. (iv) On 13.01.2002, at 12.30 a.m., P.W.1 gave Ex.P1 complaint before Gobi Police station. P.W.23/Subramaniyam, Sub-Inspector of Police, received Ex.P1 compliant and registered a case in Crime No.37 of 2002 under Section 302 IPC. He prepared Ex.P25 printed F.I.R. Then he seized M.O.3/Black jeans and M.O.4/Blue coloured checked shirt from P.W.1 through Form 95 and the same was marked as Ex.P26. (v) P.W.24/A.R.Velu, Inspector of Police, who received F.I.R. from P.W.23 at 1.45 a.m., on 13.01.2002, took up the matter for investigation. He went to the place of occurrence and prepared observation mahazar Ex.P2 and drew rough sketch Ex.P27. He took steps to take photographs through P.W.16/Prabakaran and the photographs and negatives were marked as M.O.6 and M.O.7. He seized M.O.2/knife from the place of occurrence in the presence of one Thirumoorthy and Davamani. He went to Gobi Government Hospital at 6.00 a.m. and examined P.W.1 to P.W.5 and recorded their statements. He took steps to take photographs through P.W.16/Prabakaran and the photographs and negatives were marked as M.O.6 and M.O.7. He seized M.O.2/knife from the place of occurrence in the presence of one Thirumoorthy and Davamani. He went to Gobi Government Hospital at 6.00 a.m. and examined P.W.1 to P.W.5 and recorded their statements. Then he conducted inquest in the presence of Panchayatars and the inquest report was marked as Ex.P28. P.W.24 examined the witnesses and recorded their statements. He seized M.O.5/blood stained brown coloured shirt from P.W.2 under Form 95 at 8.30 p.m. After inquest, the body of the deceased Anbalagan has been sent for post-mortem through Police namely, Rajagopal/P.W.18. (vi) P.W.21/Dr.Vaithialingam, who received Ex.P17 requisition from P.W.18, conducted autopsy and gave Ex.P19 Post-mortem report. He opined that the deceased would appear to have died of Hemorrhage and shock due to injury to Femoral Artery. After autopsy, P.W.18 seized M.O.8 to M.O.11 viz., blood stained black and white shirt, M.O.9/blood stained vests, M.O.10/blue coloured underwear and M.O.11/Black coloured pant belt and handed over to P.W.24 under Special Report Ex.P9. Thereafter, the body of the deceased was handed over to the relatives of the deceased. (vii) On 15.01.2002, P.W.24 arrested the accused in front of Saravana theatre in the presence of witnesses Thangavel and Subburathinam. The accused himself gave confession and the same has been recorded in the presence of the aforesaid witnesses. The admitted portion was marked as Ex.P4. M.O.1/Scooter, which was riding by the accused at the time of occurrence was seized under Ex.P3. Then he sent viscera and material objects for chemical analysis and the Chemical analysis report was marked as Ex.P22 and Blood test reports were marked as Exs.P23 and P24. He also gave requisition to conduct Identification parade to learned Judicial Magistrate No.II, Gobichettipalayam and the same was marked as Ex.P11. (viii) On the basis of Ex.P11, P.W.19/Ramachandran, learned Special Judicial Magistrate, sent Ex.P12 letter to the Superintendent of Central Jail, Coimbatore and conducted Identification parade on 31.01.2002 and the Identification proceedings were marked as Ex.P13. He also gave requisition to conduct Identification parade to learned Judicial Magistrate No.II, Gobichettipalayam and the same was marked as Ex.P11. (viii) On the basis of Ex.P11, P.W.19/Ramachandran, learned Special Judicial Magistrate, sent Ex.P12 letter to the Superintendent of Central Jail, Coimbatore and conducted Identification parade on 31.01.2002 and the Identification proceedings were marked as Ex.P13. (ix) P.W.14/Murugesan, who was working as an employee under maintenance of street lights in the Gobi Municipality, received a letter on 7.2.2002 from Gobi Municipality to answer as to whether street lights near Saravana theatre were functioning in good condition and he said that there was no power cut on the date of occurrence and the lights were in good condition. After completing investigation, P.W.24 filed a charge sheet against the accused for the offences under Sections 324, 302 and 506(ii) IPC. 4. The trial Court after following the procedure framed necessary charges against the accused. Since the accused pleaded not guilty, the trial Court examined P.W.1 to P.W.24 and marked Exs.P1 to P32 and M.O.1 to M.O.11. The trial Court placed the incriminating evidence before the accused and the accused denied the same in toto. On his side, Exs.D1 to D3 were marked. After considering the oral and documentary evidence, the trial Court convicted the accused for the offence under Section 304(i) IPC for causing death to the deceased and convicted for the offence under Section 324 IPC for causing injury to P.W.2 and sentenced him as stated above. 5. Challenging the conviction and sentence, Mr.R.Karthikeyan, learned counsel for the appellant submitted that identity of the accused has not been proved and M.O.2/knife was not belonging to the accused. Further, there is a contradiction between the medical and ocular evidence. In the Accident Register copy, it was stated that the deceased sustained injury by road traffic accident. After the death of the deceased only, it was stated that he was stabbed by the accused, but his identification was not given. It is further submitted that there was no intention on the part of the accused to commit murder on the deceased. If at all this Court will agree with his arguments, the accused may be convicted for the offence under Section 304(ii) IPC. The sentence imposed on the accused is also very high and the quantum of sentence may be reduced. Hence, he prayed for allowing of this appeal. 6. If at all this Court will agree with his arguments, the accused may be convicted for the offence under Section 304(ii) IPC. The sentence imposed on the accused is also very high and the quantum of sentence may be reduced. Hence, he prayed for allowing of this appeal. 6. Resisting the same, Mr.C.Emalias, learned Government Advocate (Crl. Side) submitted that even though accused was charge sheeted for the offences under Sections 302, 324 and 506(ii) IPC, he was convicted only for the offence under Sections 324 and 304(i) IPC. The trial Court considering every aspects came to the correct conclusion. Hence, he prayed for dismissal of the appeal. 7. Considered the rival submissions made on both sides and the materials available on record. 8. On perusal of records, it is seen that P.W.1 to P.W.4, who are friends of the deceased, are independent eye-witnesses and P.W.2/Saravanan was also an injured eye witness. They are the only available witnesses. P.W.5/Murugesan, who is father of the deceased Anbalagan, is not an eye witness. P.W.6/Venkatesan and P.W.7/Murugesan, who are running and working in Barber shop, in Saravana Theatre road, P.W.8/Devan @ Devaraj, who is running petty shop, P.W.9/Saravanan, who is a salesman in Raja wines shop, P.W.10/Ganesh @ Nagalingam, who is a Bunk manager, were examined and they turned hostile, during trial. 9. On 12.01.2002, at 8.30 p.m., when P.W.1 to P.W.4 and the deceased Anbalagan, who gone to visit Pariyur muthu pallakku, were chatting in front of Saravana Theatre near Gobi Bus stand, at the time, the accused, who was riding his scooter/M.O.1 came in rash and negligent manner, dashed against P.W.2 and due to wordy altercation, the accused assaulted P.W.2 with M.O.2/knife on his left hand. At the time, the deceased who was trying to prevent the same, was stabbed by the accused on his left thigh, which leads to death. 10. At this juncture, it is appropriate to consider Ex.P19 post-mortem certificate, in which, P.W.21/Dr.Vaithiyalingam mentioned the following external injury sustained by the deceased. At the time, the deceased who was trying to prevent the same, was stabbed by the accused on his left thigh, which leads to death. 10. At this juncture, it is appropriate to consider Ex.P19 post-mortem certificate, in which, P.W.21/Dr.Vaithiyalingam mentioned the following external injury sustained by the deceased. "External Injury- A sutured wound 5 cm in length-Left upper thigh, oblique and vertically 6 cm below the mid point of the inguinal ligament left side; sharp cut edged oval shaped injury 5 cm X 1.5 cm X depth 7 cm passing upwards and medially below the inguinal region of left upper thigh; cut injury left Femoral Artery tear 3 cm X 0.5 cm X 0.5 cm depth, 3 cm below the mid point of the inguinal ligament; Left clotted blood 200 gms in the muscle plane and lacerated injury. " It reveals that the stab injury pierced Femoral Artery of the deceased, so the blood was clotted on the tissue, which leads to death. P.W.21 opined that the deceased would appear to have died of hemorrhage and shock due to injury to Femoral Artery. So the death of the deceased is due to hemorrhage and shock. 11. Now this Court has to decide that who had caused injury to the deceased? It is pertinent to note that on the date of occurrence, there was no power cut and street lights were available and to prove the same, P.W.14/Employee in maintaining Street light in Gobi Municipality was examined. Admittedly, on 12.01.2002, there was Pariyur car festival and no doubt, the lights were mostly available. Further, in Ex.P1 complaint, the name of the appellant/accused was not mentioned. Due to wordy altercation between the accused and the deceased and his friends, P.W.2 sustained injury and deceased sustained fatal injury. Appellant in his statement stated that M.O.1/scooter was not belonging to him. Even though P.W.13/Senthilkumar deposed that R.C. Book in respect of M.O.1/scooter bearing Registration No.TN37H8822, was pledged and received amount by one Rajkumar, but his evidence can not give helping hands to the prosecution case. In his cross-examination, P.W.13 fairly conceded that one Rajkumar received Rs.5,000/- by pledging his scooter and gave interest 1 = years, thereafter, he died and the death certificate of Rajkumar was marked as Ex.D2 and receipt for receiving the above said amount was marked as Ex.D1. In his cross-examination, P.W.13 fairly conceded that one Rajkumar received Rs.5,000/- by pledging his scooter and gave interest 1 = years, thereafter, he died and the death certificate of Rajkumar was marked as Ex.D2 and receipt for receiving the above said amount was marked as Ex.D1. On perusal of Ex.D1, scooter number has been mentioned as TN37H8822 LML Vespa, which was seized under Ex.P5/seizure mahazar and the R.C. Book was marked as Ex.P6. But in Ex.P6, the name of the owner was mentioned as A.Ummarm, s/o Abdul Rahman. It is true, in the complaint, the Registration number of the scooter was not mentioned. 12. Now it is appropriate to consider the Identification parade conducted by P.W.19/Ramachandran, learned Special Judicial Magistrate. P.W.19 after following the procedure, conducted identification parade and the accused was identified by the witnesses. When the accused was questioned by the Magistrate, at the time, he stated that when he was produced before the judicial custody, he was shown by police people to the witnesses. But I do not find any reason for discarding Ex.P13 proceedings of the identification parade, because there is no previous enmity between the accused and the deceased and his friends and hence, there is no necessity for them to rope the accused in this case. It is to be noted that the occurrence took place on 12.01.2002, at 8.30 p.m., before that, the accused and the deceased were not known. In such circumstances, I am of the view, the argument advanced by the learned counsel for the accused/appellant that identity of the accused is doubtful, does not merit acceptance. In Ex.P1 complaint, P.W.1 stated the age of the accused and they can also be able to identify the accused. So there is no reason for discarding the evidence of P.W.1 to P.W.4, which are trustworthy and reliable. 13. Now this Court has to consider the argument advanced by the learned counsel for the appellant that in Ex.D3/case sheet of the deceased, it was mentioned that he sustained injury on Road traffic accident, but later, it was ended in murder case. While perusing the evidence of P.W.1, he stated that as soon as the deceased sustained injury, they took him to nearby hospital, but the Nurse in the hospital refused to admit him, since he was sustained stab injury by knife. While perusing the evidence of P.W.1, he stated that as soon as the deceased sustained injury, they took him to nearby hospital, but the Nurse in the hospital refused to admit him, since he was sustained stab injury by knife. Hence they took him to Government Hospital, Gobi and stated that he sustained injury on the road traffic accident. They got feared that if they disclosed the fact that he was sustained stab injury, they would not have admitted him. 14. At this juncture, it is appropriate to consider the evidence of P.W.20/Dr.Ragunathan. In his cross-examination, he stated that the injury sustained by the deceased was caused by knife/M.O.2 and he had not sustained that injury in road traffic accident. In his cross-examination, he stated as follows: "TAMIL” So no reliance can be placed on Ex.D3 and the submission made by the learned counsel for the appellant that the deceased sustained injury on road traffic accident. 15. As already stated that there is no reason for discarding the evidence of P.W.1 to P.W.4. There was no necessity for them to give false evidence against the accused, since there was no previous enmity between both of them. In such circumstances, I am of the view, the appellant/accused alone caused stab injury using M.O.2/knife. 16. It is pertinent to note that the material objects were sent for chemical analysis and the reports were received under Exs.P22 to P24. M.O.2/knife contains human blood and the result of grouping test is inconclusive and the blood in the blood stained shirt is 'O' group, which shows that the appellant alone caused injury to P.W.2 and that has been spoken by P.W.20/Dr.Ragunathan and Accident register copy of P.W.2 was marked as Ex.P16. Since the accused caused simple injury to P.W.2 with deadly weapon, he was convicted under Section 324 IPC by the trial Court. In my opinion, it does not warrant any interference. Admittedly, the appellant/accused has no intention to commit murder on the deceased. He was stabbed him on his left thigh, but the accused did not know that causing injury on left thigh cut femoral artery, which leads to death. 17. The accused/appellant was convicted for the offence under Section 304(i) IPC for causing fatal injury to the deceased. Admittedly, the appellant/accused has no intention to commit murder on the deceased. He was stabbed him on his left thigh, but the accused did not know that causing injury on left thigh cut femoral artery, which leads to death. 17. The accused/appellant was convicted for the offence under Section 304(i) IPC for causing fatal injury to the deceased. It is appropriate to incorporate the ingredients of Section 304(i) IPC, which reads as follows: (1) Death of a human being (2) Death was caused by accused by an act. (a) With intention to cause death unless any of 5 exceptions of Section 300. (b) With intention of causing such bodily injury as is likely to cause death. (c) With knowledge that he is likely to cause death. 18. While perusing Ex.P1 complaint, it was stated as follows: "TAMIL” It shows that the accused has no intention to cause injury to the deceased that too he is having knowledge that he is likely to cause death using knife/M.O.2. In such circumstances, I am of the view, conviction under Section 304(i) IPC passed by the trial Court is not sustainable, if at all he is convicted under Section 326 IPC. As per Section 326 IPC, the grievous hurt caused by deadly weapon leads to death. Hence, I am of the view, the appellant is convicted for the offence under Section 326 IPC instead of Section 304(i) IPC, since the occurrence had been taken place on sudden provocation. Therefore, the appellant is convicted for the offence under Section 326 IPC and sentenced to undergo six months rigorous imprisonment and the fine has been increased from Rs.15,000/- in default in payment, to undergo one month simple imprisonment. Out of Rs.15,000/-, Rs.12,000/- has to be paid as compensation to P.W.5, father of the victim. 19. In fine, (i) The Criminal Appeal is partly allowed. (ii) The conviction and sentence passed by the trial Court for the offence under Section 324 IPC is hereby confirmed. (iii) The conviction and sentence passed by the trial Court for the offence under Section 304(i) IPC is hereby set aside. (iv) The appellant/accused is convicted for the offence under Section 326 IPC. (v) The appellant/accused is sentenced to undergo six months rigorous imprisonment and imposed a fine of Rs.15,000/-, in default in payment, to undergo one month Simple Imprisonment. (iii) The conviction and sentence passed by the trial Court for the offence under Section 304(i) IPC is hereby set aside. (iv) The appellant/accused is convicted for the offence under Section 326 IPC. (v) The appellant/accused is sentenced to undergo six months rigorous imprisonment and imposed a fine of Rs.15,000/-, in default in payment, to undergo one month Simple Imprisonment. (vi) Out of Rs.15,000/-, Rs.12,000/- is ordered to be paid as compensation to P.W.5, who is the father of the deceased. (vii) Bail bond, if executed by the appellant/accused shall stand cancelled. (viii) The trial Court is directed to take steps to secure the custody of the accused to undergo the remaining period of sentence.