Judgment :- 1. The appeal arises out of the Judgment of conviction and sentence dated 30.11.2005, made in S.C.No.38 of 2004 on the file of the learned Principal Sessions Judge at Pondicherry, whereby, the accused was convicted for the offence punishable under Section 323 of IPC in terms of Section 235 (i) of Cr.P.C. and sentenced to undergo six months simple imprisonment with fine of Rs.1,000/-, in default, to undergo one month simple imprisonment. 2. The respondent Police filed a charge sheet stating that on 29.06.2002 at about 16 hours at Big Market, Mahatma Gandhi Road, Pondicherry, due to wordy quarrel, the accused assaulted one Velu and pushed him down and caused head injury, which resulted in his death and thereby, committed culpable homicide not amounting to murder, an offence punishable under Section 304 of IPC. 3. The case of the prosecution, on the basis of evidence let in by the persecution witnesses, is as follows: (i) P.W.1 – Rani is the sister of the deceased Velu. P.W.4 – Kala is the wife of the deceased Velu. On the fateful day, i.e. 29.06.2002 at about 4.00 p.m., when P.W.1 was entering into the Big Market to purchase vegetables, she saw her deceased brother asking the accused to give money and that the accused saying that he had no money, fisted the deceased on his mouth and pushed him down, due to which, the deceased fell down on the ground and sustained bleeding injury on the occipital region of the head and that she immediately rushed from the occurrence spot to inform P.W.4, wife of the deceased, about the incident. P.W.2-Ravindran and P.W.3-Rathinavel are eyewitnesses, who had seen the incident that the deceased fell down near Balaji Hotel. Then, the deceased was admitted in the Hospital, where, he died on the very next day. P.W.1-Rani went to the Police Station and gave Ex.P1-Complaint, which was received by P.W.9-Ragunayagam, Sub-Inspector of Police, on 30.06.2002 at about 9.00 a.m. (ii) On receiving the complaint, P.W.9 registered a case in Crime No.180 of 2002 against the accused for an offence punishable under Section 304 of IPC. On the same day, at 9.00 a.m. he prepared printed FIR, i.e. Ex.P9. On the same day, at 9.00 a.m. he prepared printed FIR, i.e. Ex.P9. Thereafter, he took up the matter for investigation and went to the place of occurrence at 9.35 p.m., where he prepared observation Mahazar and drew Ex.P10-Rough Sketch in the presence of witnesses, i.e. Durai and P.W.7-Mohan. At about 10.30 a.m., he went to the Government Hospital and conducted inquest on the body of the deceased Velu, in the presence of Panchayatdars and witnesses and prepared Ex.P2-inquest report. He seized M.O.1-Lungi under Ex.P11-Seizure Mahazar and examined the witnesses and recorded their statements. After completing inquest, he sent a letter for post-mortem and examined witnesses and recorded their statements. On the same day, at 20.30 hrs., he arrested the accused at Big Market and recorded his confession statement at 21.30 hrs. in the presence of witnesses, viz., Durai, Mohan and Selvaraj. On 01.07.2002, the accused was sent to judicial custoday. Viscera was sent for chemical analysis and the report was marked as Ex.P4, which shows that at the time of incident, the deceased consumed alcohol. On 20.01.2003, P.W.9 examined P.W.6-Dr.Subbiah, who conducted autopsy and issued Ex.P3-Post-mortem certificate and recorded his statement. On 05.02.2003, he also took steps to take photograph through P.W.8-Kannan and the photographs were marked as Ex.P7 and negatives were marked as Ex.P8. After concluding investigation, he filed a charge sheet against the accused for offence punishable under Section 304 of IPC. 4. The learned Sessions Judge placed the incriminating evidence against the accused, but, the same was denied by him. Considering the oral and documentary evidence, the learned Sessions Judge acquitted the accused for the offence punishable under Section 304 of IPC and convicted him for the offence punishable under Section 323 of IPC and sentenced him as stated above. Aggrieved against the same, the present appeal has been preferred by the appellant/accused. 5. Challenging the conviction and sentence, the learned counsel appearing on behalf of the appellant submitted that P.W.1 and P.W.2 are not eye-witnesses. The alleged occurrence is said to have taken place on 29.06.2002 at about 4.00 p.m. at Big Market. The deceased demanded money to the accused, but, he refused to give money, which led to wordy altercation and the accused pushed him down. The alleged occurrence is said to have taken place on 29.06.2002 at about 4.00 p.m. at Big Market. The deceased demanded money to the accused, but, he refused to give money, which led to wordy altercation and the accused pushed him down. Since the deceased was in an inebriated mood when he was pushed down, he lost his stability and he fell down on the ground and sustained bleeding injury on the occipital region. But, there is no evidence to show that the deceased sustained injury only on the push made by the appellant. He further submitted that P.W.1, in her evidence stated that there was a distance of 100 feet between the Salem Briyani Hotel and the place of occurrence, whereas P.W.2, in his evidence stated that there was 50 feet distance between the Balaji Hotel and the place of occurrence. Therefore, there is a contradiction in the evidence of P.W.1 and P.W.2. Considering the evidence of P.W.4, the deceased is an alcoholic and it is possible that he lost his stability and fell down on earth and sustained bleeding injury. So, there is no evidence to show that the injuries had been caused by the appellant. Hence, he prayed for setting aside the conviction under Section 323 of IPC. 6. Resisting the same, the learned Public Prosecutor, Pondicherry, submitted that even though charge had been framed against the accused / appellant under Section 304 of IPC, he was convicted for offence under Section 323 IPC. He further submitted that the evidence of P.W.1 and P.W.2 is corroborating with each other that the appellant herein pushed the deceased down, due to which, he fell down on the ground and sustained bleeding injury on his occipital region. So, the trial Court has considered all the aspect in a proper prospective and came to the correct conclusion. He further submitted that during the trial, the appellant himself had produced citation and submitted that he had no intention to commit murder and fisted the deceased on his face. So, the offence does not come under Section 304 IPC and come under Section 323 IPC. Therefore, the trial Court has considered all the aspect and convicted the accused under Section 323 IPC. Hence, he prayed for dismissal of this appeal. 7. Considered the rival submissions on either side and perused the records. 8. P.W.1 is the sister of the deceased. Therefore, the trial Court has considered all the aspect and convicted the accused under Section 323 IPC. Hence, he prayed for dismissal of this appeal. 7. Considered the rival submissions on either side and perused the records. 8. P.W.1 is the sister of the deceased. P.W.2 is the cousin brother of the deceased. The accused was a Lemon Vendor at Big Market, Gandhi Road, Pondicherry. The deceased, Velu, was a sanitary worker. On fateful day, i.e. on 29.06.2002 at 4.00 p.m., the deceased demanded money from the accused, Bala @ Balasubramanian. But, he refused to give money, which led to wordy altercation and the accused fisted the deceased on his face. 9. While perusing the evidence of P.W.1, she is not an eye-witness. Because, there is a material contradiction in her chief and cross-examinations. In her chief examination, she deposed that her deceased brother had demanded money from the accused, but he refused to give money and fisted the deceased on his mouth, due to which, her brother fell down and sustained injuries. Thereafter, she rushed to the sister-in-law's house to inform about the incident. After the news being heard, her sister-in-law returned to the place of occurrence and took her husband to the Hospital. But, in her cross examination, she fairly conceded that she did not know as to who admitted her brother in the hospital. She further conceded that P.W.3-Rathinavel is her brother-in-law. Her brother usually consumes alcohol and falls down on the ground. She further deposed that when she went to the hospital to see her brother, he sustained more injuries. Considering the evidence of P.W.1, she had not taken her brother to the hospital, which shows that she is not an eye-witness. 10. P.W.2-Ravindran, in his evidence, deposed that the accused snatched money from Velu and fisted on his face, due to which, the deceased fell down and sustained injuries. In his cross examination, he deposed that the deceased is his cousin brother. He fairly conceded that the distance between the Balaji Hotel and the place of occurrence is 50 feet. But he deposed that he had not taken any steps to take him to the Hospital. Considering the same, the presence of P.W.2 in the place of occurrence is doubtful. 11. P.W.3-Rathinavelu, in his evidence, deposed that the deceased Velu sustained injuries and fell down near Balaji Hotel. But he deposed that he had not taken any steps to take him to the Hospital. Considering the same, the presence of P.W.2 in the place of occurrence is doubtful. 11. P.W.3-Rathinavelu, in his evidence, deposed that the deceased Velu sustained injuries and fell down near Balaji Hotel. Immediately, he gave information to P.W.4-Kala, who is the wife of Velu. Thereafter, the deceased was admitted by P.W.4 with the help of one Seenakumar and P.W.3 12. P.W.4 - Kala, wife of the deceased, deposed that she received information from P.W.4-Rathinavelu that her husband sustained injuries. Immediately, she rushed to the place of occurrence, i.e. Balaji hotel and took him to the hospital, and on the very next day, the deceased died. In her cross examination, she deposed that at the time of investigation by the Police, she stated that her husband fell down at Balaji Hotel and subsequently, she took him to the opposite of Salem Biriyani Hotel. She fairly conceded that her husband usally, after taking alcohol, falls down on the ground and she takes him to the house. She further deposed that her husband had not stated as to how he sustained injury. 13. P.W.5-Nathan is one of the persons, who attended inquest. While considering the evidence of P.W.1 to P.W.4, P.W.1 and P.W.2 are not eye-witnesses. P.W.3 alone had seen the deceased falling down near Balaji Hotel and intimated the same to P.W.4. P.W.4 with the help of P.W.3 and Seenakumar admitted the deceased in the hospital. Further, the prosecution has miserably failed to file a copy of the accident register of the deceased before the Court. If the accident register was filed before the Court, the same would show as to how the deceased sustained injuries. On relying upon Ex.P3, it reveals that the deceased sustained 4 external injuries as follows: a) lacerated injury on the lower lip 3 cms x 2/1 cms b) lacerated injury on the occipital region of the scalp of the head 2 cms x 1 cm. c) Abrasion on the centre of the back. d) Two abrasions on the right flanx of the abdomen: (a) 4 cms x 1 cms (b) 2 cms x 2 cms. 14. c) Abrasion on the centre of the back. d) Two abrasions on the right flanx of the abdomen: (a) 4 cms x 1 cms (b) 2 cms x 2 cms. 14. The learned counsel for the appellant submitted that the first injury is possible if the person had been fisted and punched on the face and the other injuries are possible if the person had been contacted with rough surface. Viscera report shows that it contains 0.02 gm% of alcohol. As already stated, the evidence of P.W.1 and P.W.2 are not reliable, since they are relatives of the deceased and their presence at the alleged occurrence is doubtful. Hence, their evidence is not reliable. P.W.4 is the competent person to speak about the injury and deposed that her husband would take alcohol and he fell down in any place and then and there, she used to take him to the house. So, the facts on record proved that there is no evidence to show that the appellant alone had caused injury to the deceased which resulted to death. In Ex.P5, the Doctor had finally opined that he died due to the head injuries. He also mentioned that the individual has consumed alcohol. 15. The appellant herein as the accused in the trial Court, has produced some citations seeking for lesser punishment, which will not support to the case on hand. The prosecution ought to have proved the case independently beyond all reasonable doubt. This Court has already held that the evidence of P.W.1 and P.W.2 are not eyewitnesses and their evidence is not reliable. P.W.3 alone has seen the deceased near Balaji Hotel and intimated the same to P.W.4. Thereafter, P.W.4 rushed to the Balaji Hotel and admitted the deceased in the hospital and he died on the very next day. In such circumstances, there is no evidence to show that the accused assaulted, fisted and punched the deceased on his face, which caused injuries and the same has not been proved beyond all reasonable doubt. Hence, the benefit of doubt is given in favour of the appellant and the appellant is entitled to acquittal. Therefore, the conviction and sentence for the offence under Section 323 is hereby set aside. 16. Hence, the benefit of doubt is given in favour of the appellant and the appellant is entitled to acquittal. Therefore, the conviction and sentence for the offence under Section 323 is hereby set aside. 16. In fine: a) the appeal is allowed; b) the Judgment of conviction passed by the learned Principal Sessions Judge is hereby set aside; c) the appellant is acquitted from the charges levelled aginst him for the offence under Section 323 IPC; d) the bail bond, if any executed by the accused shall stand cancelled; e) the fine amount paid by the accused is ordered to be refunded.