Judgment :- 1. The criminal appeal arises out of the judgment of conviction and sentence, dated 11.01.2005, made in S.C.No.257 of 2004, on the file of the Additional Sessions Court, Fast Track Court No.II, Kancheepuram, whereby A1 and A2 were convicted for the offence under Section 304(ii) IPC and sentenced to undergo five years rigorous imprisonment each and imposed a fine of Rs.1,000/-each in default in payment to undergo six months rigorous imprisonment. 2. The respondent has filed a charge sheet against the appellants/accused. A1 is the father of A2 and brother of deceased Ravi. There was a land dispute in respect of ancestral property. There were palm trees in the lands. On 29.09.2003,A1 permitted the witness P.W.4/Krishnan to cut palm leaves from the palmyrah trees grown in their lands, after getting some amount from the said witness, but it was objected by the deceased Ravi. On the same day at 9.30 p.m., while the deceased Ravi was proceeding towards his house through Mariamman koil street, A1 and A2 joined together with an intention to cause death of Ravi, wrongfully restrained Ravi and assaulted him with casuarine stick, which resulted to death, thereby A1 and A2 committed an offence under Sections 341, 302 r/w 34 IPC. 3. The case of the prosecution is as follows: (i) P.W.1/Jessi is the wife of the deceased Ravi. A1/Varadan is the brother of Ravi. A2/Sagayaraj is the son of A1. There was a land dispute in respect of ancestral property. On 29.09.2003, during morning hours, P.W.4/Krishnan attempted to cut palmyrah leaves after obtaining permission from A1, which is situated in the ancestral property. Hence, the deceased Ravi objected P.W.4 for cutting the leaves. Therefore, P.W.4 returned back to his house without getting any palmyrah leaves. During that time, A1 attacked deceased Ravi on his leg with a palmyrah blanket and there was a wordy quarrel between A1 and Ravi. Thereafter, the deceased Ravi went to his work and after returning from his work at 7.00 p.m., the deceased Ravi and his wife/P.W.1 went to the house of Village President to intimate the incident, which was taken place in that morning. Since they did not lock their house, they returned back to their home. When P.W.2/Kumar came to see that the house of P.W.1 was not locked, he informed the same to P.W.1's sister and rushed to the house of Village President. Since they did not lock their house, they returned back to their home. When P.W.2/Kumar came to see that the house of P.W.1 was not locked, he informed the same to P.W.1's sister and rushed to the house of Village President. When P.W.2 came near the house, he intimated to P.W.1 that her house was not locked. At that time, P.W.1 intimated to P.W.2 that they came to the house of Village President to inform the incident, which was taken place in the morning. When they returned back, nearby their house, A2 came there and called the deceased in disrespectful manner. When they were proceeding near Mariamman Temple, P.W.1 asked A2 as to why he called the name of her husband and Ravi prevented P.W.1 not to interfere with the dispute between male members. When A2 and deceased talking each other, A1/Varadan attacked Ravi with M.O.1/casuarina stick. While A2/Sagayaraj attacking Ravi on the back side of his head with casuarina stick, Ravi fell down and blood was oozing from his nose and ears. (ii) Immediately, P.W.2/Kumar and one Soundar took the deceased Ravi to Uthiramerur Hospital by two-wheeler. From there, he was referred to Chengalpattu Government Medical College Hospital, where P.W.8/Dr.Elavarasan treated him and gave Ex.P4/Accident Register copy, in which, it was stated that Ravi was alleged to have been assaulted by two known persons at about 10.30 p.m. on 29.09.2003 near his residence with wooden log and he was unconscious. P.W.8 mentioned the following injuries. “Pupils dilated sluggishly reacting to light. Bleeding present through ear and nose. Periorbital(?) edema present in both eyes. Contusion on fore head 6 X 2 cm Laceration 2 X ½ X ½ cm on right fore head.” Then Ravi was referred to Chennai Government Hospital. (iii) P.W.3/Sivakumar, who is the husband of P.W.1's sister, took Ravi to Chennai Government Hospital and admitted him at 3.00 a.m., on 30.09.2003. Dr.Parimala in Chennai Government Hospital treated Ravi at 3.05 a.m. and gave Ex.P7/Accident Register copy, in which, it was stated that Ravi was alleged to have been assaulted by two known persons in Kozhiyaalam at 6.30 p.m., on 29.09.2003, at his residence with wooden block. Dr.Parimala in Chennai Government Hospital treated Ravi at 3.05 a.m. and gave Ex.P7/Accident Register copy, in which, it was stated that Ravi was alleged to have been assaulted by two known persons in Kozhiyaalam at 6.30 p.m., on 29.09.2003, at his residence with wooden block. (iv) On 30.09.2003, P.W.12/Ayyasamy, who was working as Sub-Inspector of Police in Uthiramerur Police station, received intimation over phone from Chennai Government Hospital and rushed to the hospital and received Ex.P1 complaint from P.W.1, wife of deceased Ravi, at 19.00 hours and went to police station at 22.00 hours and registered a case in Crime No.629/2003 under Sections 324 and 307 IPC. Then he prepared printed F.I.R. Ex.P9 and sent the same to Inspector of Police. (v) On 01.10.2003, P.W.13/Velusamy, Inspector of Police, took up the matter for investigation. He went to the place of occurrence and drew rough sketch Ex.P10. He examined the witnesses and recorded their statements. At 5.00 p.m., he examined P.W.1/Jessi at Chennai Government Hospital. At 11.00 hours, he arrested A1/Varadan at Theetalam Koot road and recorded his confession in the presence of witnesses one Arumugam and Gnanasekaran. The admitted portion of his confession was marked as Ex.P11. In pursuance of the same, he handed over M.O.1/casuarina log, which was seized under Ex.P12. (vi) On 02.10.2003, at 4.00 a.m., P.W.13 received information from Chennai Government General Hospital that Ravi, who was under treatment, was died. The death intimation report was marked as Ex.P13. Therefore, he altered the offence into Section 302 IPC and the alteration report was marked as Ex.P14 and he forwarded the same to the concerned Court. Then P.W.13 went to the Hospital and conducted inquest on the body of the deceased Ravi in the presence of the witnesses and Panchayatdars and prepared Ex.P15/Inquest report. At 12.30 hours, he sent the body of the deceased for post-mortem through Head constable Pandurangan/P.W.11. (vii) P.W.9/Dr.Sudheer, who received requisition from P.W.13, conducted autopsy and gave Ex.P5 post-mortem certificate. He sent viscera for chemical analysis and the toxology report was marked as Ex.P6. (viii) On 11.10.2003, P.W.13 examined P.W.10/Murugadoss, Principal of Meenakshi Polytechnic, where A2 was studying. He was examined to ascertain as to whether A2 was absent on 29.09.2003. P.W.10 issued Ex.P8 letter dated 3.1.2004 stating that A2 was absent for the classes from 27.09.2003 onwards. He sent viscera for chemical analysis and the toxology report was marked as Ex.P6. (viii) On 11.10.2003, P.W.13 examined P.W.10/Murugadoss, Principal of Meenakshi Polytechnic, where A2 was studying. He was examined to ascertain as to whether A2 was absent on 29.09.2003. P.W.10 issued Ex.P8 letter dated 3.1.2004 stating that A2 was absent for the classes from 27.09.2003 onwards. (ix) P.W.13 also sent M.O.1 to the Court and the Court sent Ex.P16 requisition to Tamil Nadu Forensic Science Department. Exs.P17 and P18 are the Biology Report and letter respectively sent by Forensic Science Department to the learned Judicial Magistrate, Uthiramerur and the Serology report was marked as Ex.P19. Then, P.W.13 examined other witnesses and recorded their statements. Since A2 was absconding even on 11.12.2003, he was cited as absconding accused. Later he came to know that A2 got anticipatory bail. After completing investigation, he filed a charge sheet against the accused 1 and 2 for the offence under Sections 341, 302 r/w 34 IPC. 4. The learned trial Judge 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.13 and marked Exs.P1 to P19 and M.O.1. The trial Court placed the incriminating evidence before the accused and the accused denied the same in toto. On the side of the defence, no witness was examined and no documentary evidence was marked. On considering the oral and documentary evidence, the trial Court acquitted A1 and A2 for the offence under Sections 341 and 302 IPC and convicted them under Section 304(ii) IPC and sentenced them as stated above. 5. Challenging the conviction and sentence passed by the trial Court, Mr.M.Duraisamy, learned counsel for the appellants would make the following submissions. (i) Delay in preferring complaint before police station and delay in despatching F.I.R. to the Court. ii. Scene of occurrence has not been proved. iii. P.W.1 to P.W.3 are close relatives and they are interested witnesses. iv. P.W.7/Gnanasekaran, who is an attestor, is a stockwitness. v. Non-examination of Dr.Parimala, who admitted the deceased in Government Hospital, Chennai, is fatal to the case of the prosecution. To substantiate his arguments, he relied upon the decision reported in 2003(3) CTC 584 (Gopal and others v. State, rep. by the Inspector of police, K2, Ayanavaram Police station) andprayed for allowing of this appeal. 6. Resisting the same, Mr.C.Emalias, the learned Government Advocate (Crl. To substantiate his arguments, he relied upon the decision reported in 2003(3) CTC 584 (Gopal and others v. State, rep. by the Inspector of police, K2, Ayanavaram Police station) andprayed for allowing of this appeal. 6. Resisting the same, Mr.C.Emalias, the learned Government Advocate (Crl. Side) submitted that the alleged occurrence had been taken place on 29.09.2003, at 9.30 p.m. Since the bread winner of the family sustained injury and was unconscious, the members of the family are very particular to save his life. Immediately, they took Ravi to Uthiramerur Government Hospital, where he was referred to Chengalpet Government Medical College Hospital and from there, he was referred to Chennai Government Hospital. Thereafter, P.W.1 gave Ex.P1 complaint at 19.00 hours on 30.09.2003. So the delay of nearly 22 hours is properly explained. It is further submitted that scene of occurrence has been proved by P.W.1 to P.W.3 and also by Ex.P10 rough sketch. Dr.Parimala, who admitted the deceased in the Chennai Government Hospital, treated the deceased Ravi and gave Ex.P7 Accident Register copy. So non-examination of Dr.Parimala is not fatal to the case of the prosecution. P.W.7, who is the attestor of confession, is not an eye witness and in his cross-examination, he deposed that he gone to Uthiramerur Police station as witness for two of his own case. The trial Court considered all the aspects in proper perspective and came to the correct conclusion. Therefore, 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 record, the deceased Ravi and A1/Varadan are own brothers. A2 is son of A1. Their family decided to perform marriage with deceased Ravi and his sister's daughter. Since Ravi had love affair with P.W.1, he married her. In their family, there was an ancestral property, which was yet to be partitioned. In the lands, palmyrah trees are situated. On the fateful day (i.e.) on 29.09.2003 during morning, while P.W.4/Krishnan attempting to cut palmyrah leaves, after getting permission from A1, Ravi made an objection. Since he made an objection, P.W.4 left the place without cutting leaves. Due to this, there was a wordy quarrel arose between Ravi and A1 and A1 assaulted the deceased on his leg with palmyrah blanket. Since he made an objection, P.W.4 left the place without cutting leaves. Due to this, there was a wordy quarrel arose between Ravi and A1 and A1 assaulted the deceased on his leg with palmyrah blanket. Thereafter, Ravi gone to his work and he returned to his home at 7.00 p.m. He along with his wife/P.W.1 intimated the incident to Village President. While Ravi along with P.W.1 talking with the President, they came to know that they did not lock their house. So they returned back to his house and at that time, the alleged occurrence had been taken place at 9.30 p.m. 9. Admittedly, P.W.1 gave Ex.P1 complaint on 30.09.2003 at 19.00 hours, when she was at Chennai Government Hospital. P.W.12, Sub-Inspector of Police, after receiving information from Chennai Government Hospital, rushed to the Hospital and recorded statement of P.W.1 and received Ex.P1 complaint. He registered a case in Crime No.629 of 2003, at 22.00 hours, on 30.09.2003. As per Ex.P1 complaint, the alleged occurrence was said to have been taken place on 29.09.2003, at 9.30 p.m., but Ex.P1 was given at 7.00 p.m. on 30.09.2003, which is nearly 22.00 hours delay. According to the argument advanced by the learned counsel for the appellants, the delay has not been properly explained by prosecution. 10. While perusing Ex.P9 F.I.R., it would reveal that delay has been explained by P.W.1. As per the evidence of P.W.1, since her husband sustained head injury and was in unconscious stage, herself and the entire family members were very particular to save his life. Immediately after the incident, Ravi was taken to Uthiramerur Government Hospital, where he was referred to Chengalpet Government Medical College Hospital. At 11.45 p.m., P.W.8/Dr.Elavarasan treated Ravi and gave Ex.P4 Accident Register copy, in which, it was stated that Ravi was alleged to have been assaulted by two known persons, at about 10.30 p.m., on 29.09.2003 near his residence with wooden log and he was unconscious. From there, Ravi was referred to Chennai Government Hospital and he was admitted at 3.00 a.m., on 30.09.2003. It shows that the family members are very particular to save his life by taking Ravi from one hospital to other and hence, they are unable to prefer a complaint in time. In such circumstances, I am of the opinion, delay in preferring complaint will no way affect the case of the prosecution. 11. It shows that the family members are very particular to save his life by taking Ravi from one hospital to other and hence, they are unable to prefer a complaint in time. In such circumstances, I am of the opinion, delay in preferring complaint will no way affect the case of the prosecution. 11. Now this Court has to decide whether delay in despatching F.I.R. is fatal to the case of the prosecution? Admittedly, F.I.R. was registered on 30.09.2003, at 22.00 hours and it has been reached the Court at 5.00 p.m. on 1.10.2003, which is nearly 19.00 hours delay. Learned counsel for the appellants submitted that the delay has not been properly explained by prosecution. But in my opinion, since the case is based on eye witness, the delay in despatching F.I.R. has not played vital role. 12. Learned counsel for the appellants would rely upon the Division Bench Judgment of this Court in Crl.A.Nos.66 of 2011 and 711 of 2010, which was delivered on 17.07.2012 and submitted that un-explained delay in F.I.R. reaching the Court assumes signal importance. This delay goes to the root of the matter. But in the above citation, it was specifically held that F.I.R. in this case is doubtful. Whereas in the case on hand, as soon as the deceased admitted in the Uthiramerur Government hospital, he was referred to Chengalpet Government Medical College Hospital, where P.W.8/Dr.Elavarasan treated Ravi and gave Ex.P4 Accident Register Copy, in which, it was stated that two known persons have assaulted him. From there, he was referred to Chennai Government Hospital and Dr.Parimala treated Ravi and gave Ex.P7 Accident Register Copy, in which, it was stated that he was assaulted by two known persons. In such circumstances, it is appropriate to consider the evidence of P.W.4/Krishnan. He deposed that on the date of occurrence, during morning, he requests A1/Varadan for cutting palmyrah leaves and after getting permission from A1, P.W.4 cut the leaves and it was objected by the deceased, so he returned back. This factum has been proved that on the date of occurrence during morning time itself, there was a dispute between the appellants and the deceased. As the case is mainly based on the eye-witnesses, with great respect, the above citation is not applicable to the facts of the present case. 13. This factum has been proved that on the date of occurrence during morning time itself, there was a dispute between the appellants and the deceased. As the case is mainly based on the eye-witnesses, with great respect, the above citation is not applicable to the facts of the present case. 13. Learned counsel for the appellants also relied upon the decision of this Court reported in 2003(3) CTC 584 (Gopal and others v. State, rep. by the Inspector of police, K2, Ayanavaram Police station), in which, it was held that the police officer is aware of incident even by 7.00 a.m. before receiving complaint. Hence, P.W.1 gave complaint at 8.00 a.m., cannot be true. In the above citation, it was held that presence of P.W.1 is doubtful, since he was not examined at the time of inquest. In the case on hand, P.W.1 and P.W.2 are eye witnesses. P.W.1/Jessi is the wife of deceased Ravi and P.W.2/Kumar is the relative of P.W.1 and they deposed that as to how the incident occurred. Considering their chief and cross-examination, there is no reason for discarding their evidence. So their evidence are trustworthy and hence, their evidence are reliable. In such circumstances, with great respect, the above decision is not applicable to the facts of the present case. Hence, I am of the view, delay in preferring complaint and despatching F.I.R. are not fatal to the case of the prosecution. 14. Now this Court has to consider whether non-examination of Dr.Parimala is fatal to the case of the prosecution? Dr.Parimala, who admitted the deceased in Chennai Government Hospital, treated Ravi, when he was admitted in the Hospital, at 3.00 a.m., on 30.09.2003. She gave Ex.P7 Accident Register copy and pointed out the following injuries: “Left ear bleed Epistaris Laceration right temple 2 X 0.5 X 0.5 c.m. Abrasion right ear lobe 2 X 2 c.m. Contusion right ear.” But Dr.Parimala was not examined before the Court. P.W.9/Dr.Sudhir, who conducted autopsy of the deceased, deposed that he is well-acquaintance with the signature and writings of Dr.Parimala. Furthermore, it is pertinent to note that the deceased was treated by Dr.Parimala, for which, Ex.P7 Accident Register copy was marked. Before that, P.W.8/Dr.Elavarasan at first instance treated the injured Ravi and issued Ex.P4 Accident Register copy. In such circumstances, I am of the view, non-examination of Dr.Parimala is not fatal to the case of the prosecution. 15. Furthermore, it is pertinent to note that the deceased was treated by Dr.Parimala, for which, Ex.P7 Accident Register copy was marked. Before that, P.W.8/Dr.Elavarasan at first instance treated the injured Ravi and issued Ex.P4 Accident Register copy. In such circumstances, I am of the view, non-examination of Dr.Parimala is not fatal to the case of the prosecution. 15. Now this Court has to consider whether the scene of occurrence is proved by the prosecution beyond reasonable doubt? As per Ex.P4 Accident Register copy, it was specifically stated that Ravi was assaulted by two known persons at about 10.30 p.m. near his residence with wooden log. As per Ex.P10 rough sketch, the place of occurrence has been shown as near A1/Varadan's house. The house of the deceased has been situated on the northern side of the A1's house. Admittedly, when the deceased returned back to his house, on the way, he was assaulted. But no blood stained earth has been collected from the place of occurrence. Since the deceased had sustained head injury and there was oozing of blood from his nose and ears, immediately he was taken to Uthiramerur Hospital. The evidence of P.W.1 to P.W.3 proved that the place of occurrence is near Mariamman temple, which is near the house of A1. As per Ex.P1 complaint, P.W.1 stated that the occurrence was taken place in front of the house of A1. Merely because the Doctor had deposed that the occurrence had taken place near the residence of Ravi, it is not fatal to the case of the prosecution. 16. Considering the evidence of P.W.1 to P.W.3 along with the evidence of Doctors/P.W.8 and P.W.9, it would prove that the appellants had assaulted the deceased on his head, which leads to death. In Ex.P5 post-mortem certificate, the following head injuries were mentioned. “contusion scalp on vertex and occipital regions. 15X10X0.5 c.m. Two craniotomy defects in the skull. (i) Right side fronto parietal region 10X10 c.m. (ii) Left side fronto parietal regions 8X8 c.m. Extensive sub dural hemorrhage and sub arachnid hemorrhage all over brain surface.” A suggestion was posed to P.W.9/Dr.Sudheer, during his cross-examination, if a person fell down on the earth forcibly, there is any possibilities for sustaining injury on his scalp, he stated that it is possible. Furthermore, P.W.8/Dr.Elavarasan in his cross-examination, deposed that there was contusion on the eyes of the deceased and it is possible, if he sustained injury on his head. In such circumstances, the evidence of P.W.1 to P.W.3 proved that the appellants alone assaulted the deceased on his head with M.O.1, due to which, he sustained head injury, oozing of blood on his nose and ears and swelling on his eyes and became unconscious. Even though treatment has been given to the deceased, he died on 02.10.2003 at 4.00 a.m. Therefore, in my opinion, the trial Court is correctly held that the appellants/accused 1 and 2 are guilty for the offence under Section 304(ii) IPC. 17. As already discussed supra, the delay in preferring complaint and despatching F.I.R. is not fatal to the case of the prosecution. The place of occurrence has been clearly proved by the evidence of P.W.1 to P.W.3 and Ex.P1. The death of the deceased is a homicidal in nature and it was caused by appellants/A1 and A2. So I am of the view, the prosecution has proved that the accused are guilty for the offence under Section 304(ii) IPC. Hence, the conviction passed by the trial Court for the offence under Section 304(ii) IPC does not warrant any interference. 18. As per the quantum of sentence is concerned, the trial Court sentenced the accused 1 and 2 to undergo five years rigorous imprisonment each and imposed a fine of Rs.1,000/- each in default in payment to undergo six months rigorous imprisonment. Considering the age of A2, he was in an adolescent age and studying in polytechnic, at the time of occurrence. In such circumstances, I am inclined to reduce the quantum of sentence from five years to two years rigorous imprisonment and the fine amount is increased from Rs.1,000/- to Rs.25,000/- each, out of which, Rs.45,000/- is ordered to be paid as an compensation to P.W.1, who is the wife of the deceased Ravi, since she is having two minor children viz., one daughter, aged about 9 years and one son, aged about 6 years. 19. In fine, “The Criminal Appeal is dismissed. Conviction passed by the trial Court under Section 304(ii) IPC is confirmed. Sentence alone has been modified as follows: (i) The sentence of imprisonment is reduced from five years to two years rigorous imprisonment. 19. In fine, “The Criminal Appeal is dismissed. Conviction passed by the trial Court under Section 304(ii) IPC is confirmed. Sentence alone has been modified as follows: (i) The sentence of imprisonment is reduced from five years to two years rigorous imprisonment. (ii) Fine amount is increased from Rs.1,000/- to Rs.25,000/- each (i.e.) Rs.50,000/-, failing which, the appellants/A1 and A2 are directed to undergo six months simple imprisonment. (iii) Out of the fine amount of Rs.50,000/-, a sum of Rs.45,000/- is ordered to be paid as compensation to the wife of the deceased viz., P.W.1. Bail bond, if executed by the appellants/A1 and A2 shall stand cancelled.” The trial Court is directed to secure the custody of the accused to undergo the remaining period of sentence.