JUDGMENT (Prayer: Appeal filed under Section 374 of the Code of Criminal Procedure against the judgment dated 26.07.2019, in S.C.No.460 of 2015, on the file of the I Additional District and Sessions Court, Tirunelveli.) P.N. Prakash, J. 1. This criminal appeal is filed against the judgment and order dated 26.07.2019, in S.C.No.460 of 2015, on the file of the I Additional District and Sessions Court, Tirunelveli, 2. The Trial Court framed as many as five charges against the accused 1 to 3, as detailed below: Charge Penal Provisions 1. 147 I.P.C. 2. 294(b) r/w 149 I.P.C. 3. 341 r/w 149 I.P.C. 4. 302 r/w 149 I.P.C. 5. 506(II) I.P.C. 3. By judgment and order dated 26.07.2019, the Trial Court acquitted the accused 2 and 3 of all the five charges framed against them, acquitted accused No.1 of the charges framed framed against him under Sections 147, 294(b) r/w 149, 341 r/w 149 and 506(II) I.P.C., and convicted and sentenced him as detailed below:- Section of Law Sentence of imprisonment Fine amount 302 I.P.C. To undergo imprisonment for life. Rs.2,000/- in default to undergo rigorous imprisonment for three (3) months. 4. The prosecution case is as under: 4.1. The deceased Jegan, along with his family members, including his mother Kala (P.W.1), went for the wedding reception of her husband's nephew Michael J. Radsan (P.W.4), in the evening of 04.06.2014, which was conducted in his (P.W.4's) house. 4.2. Gobi (A1), Madhan (A2), Parthiban (A3) and two juveniles, namely, Lakshmanan and Suriya had also come for the wedding reception. During dinner, they [Gobi (A1), Madhan (A2), Parthiban (A3) and the juveniles, namely, Lakshmanan and Suriya] misbehaved with the servers and that was questioned by Jegan. The accused felt it as an affront and around 11.30 in the night, while Jegan was having dinner in the wedding reception house, all the accused abused and assaulted Jegan. 4.3. It is the specific case of the prosecution that Gobi (A1) took a stick from nearby and attacked Jegan. This created a ruckus in the wedding reception house and the accused were separated from Jegan by the guests. Due to the attack, Jegan fainted and therefore, he (Jegan) was rushed to Dr.Jeyasekharan Hospital & Nursing Home, Nagercoil, for treatment, at 01.09 a.m., on 05.06.2014. This created a ruckus in the wedding reception house and the accused were separated from Jegan by the guests. Due to the attack, Jegan fainted and therefore, he (Jegan) was rushed to Dr.Jeyasekharan Hospital & Nursing Home, Nagercoil, for treatment, at 01.09 a.m., on 05.06.2014. The doctor from the said hospital sent intimation (Ex.P6) to the police, wherein, it is stated that “a log of wood fell on his head”. 4.4. On getting information, the police went to the said hospital, where Kala (P.W.1), mother of Jegan, who was present at the place of occurrence, gave a written complaint (Ex.P1), based on which, Vijayakumari (P.W.8), Sub Inspector of Police, registered a case in Panagudi Police Station Crime No.189 of 2014, under Sections 294(b), 307 and 506(II) I.P.C., on 05.06.2014 at 15.00 hours and prepared the printed first information report (Ex.P7), which reached the jurisdictional Magistrate, at 12.30 p.m., on 06.06.2014, as could be seen from the endorsement thereon. 4.5. Jegan succumbed to the injuries on 09.06.2014 at 11.30 a.m., pursuant to which, the case was altered to one under Section 302 I.P.C. 4.6. Investigation of the case was taken over by Muthu Premchand (P.W.10), Inspector of Police, who went to the hospital and conducted inquest over the body of Jegan and the inquest report was marked as Ex.P12. He shifted the body of Jegan from Dr.Jeyasekharan Hospital & Nursing Home, Nagercoil, to the Government Hospital, Aasaripallam, where, Dr.Rajesh (P.W.5) performed autopsy on the body Jegan and issued postmortem certificate (Ex.P4), wherein, he has noted the following injuries: “The following ante-mortem injuries noted:- 1) 3x2cm abrasion seen over the back of head. The above said abrasion is partly covered with black scab. 2) 27cm long inverted 'U' shaped sutured surgical wound seen over the left temporo parieto, frontal regions. The sutured wound shows adhesive margins. O/D Scalp, skull and dura:- Sub scalpal bruising noted over the occipital region and over the frontal regions. (Treatment procedure) 36cm circumference bony deficit noted over the left fronto, parieto, temporal regions. Brain matter found bulging out through that deficit. Diffuse sub dural and Sub arachnoid haemorrhage noted over the both cerebral hemispheres. Brain softened.” 4.7. In the postmortem certificate (Ex.P4), the final opinion as to the cause of death of Jegan has been noted as follows: “The deceased would appear to have died of head injury.” 4.8. Brain matter found bulging out through that deficit. Diffuse sub dural and Sub arachnoid haemorrhage noted over the both cerebral hemispheres. Brain softened.” 4.7. In the postmortem certificate (Ex.P4), the final opinion as to the cause of death of Jegan has been noted as follows: “The deceased would appear to have died of head injury.” 4.8. Gobi (A1) and Madhan (A2) were arrested by the police as early as on 05.06.2014 at 19.30 hours, even before the death of Jegan and pursuant to their police confession, a stick (M.O.1) was recovered under the cover of a mahazar (Ex.P8). 4.9. After examining various witnesses and collecting reports from the experts, the Investigating Officer completed the investigation and filed a final report in P.R.C.No. 12 of 2015, before the learned Judicial Magistrate, Valliyur, against Gobi (A1), Madhan (A2) and Parthiban (A3), under Sections 147, 294(b), 341, 302 and 506(II) r/w 149 I.P.C. 4.10. A separate charge sheet was filed against the juvenile accused Lakshmanan and Suriya before the Juvenile Justice Board, Tirunelveli. 5. On appearance of the accused, the provisions of Section 207 of the Code of Criminal Procedure were complied with and the case was committed to the Court of Session, Tirunelveli, in S.C.No.460 of 2015 and was made over to the I Additional District and Sessions Court, Tirunelveli, for trial. The Trial Court framed charges against the accused, as detailed in Paragraph No.2, supra. 6. When questioned, the accused pleaded "not guilty". To prove the case, the prosecution examined 11 witnesses and marked 16 exhibits and one material object. When the accused were questioned under Section 313 of the Code of Criminal Procedure on the incriminating circumstances appearing against them, they denied the same and did not come forward to give any plausible explanation. No witness was examined from the side of the accused nor any document marked. 7. The Trial Court, after considering the evidence on record and hearing either side, by judgment and order dated 26.07.2019, convicted and sentenced the accused, as detailed in Paragraph No.3, supra. Challenging the above said conviction and sentence, Gobi (A1) has filed the present appeal. 8. Heard Mr.S.Palani Velayutham, learned counsel appearing for the appellant and Mr.S.Ravi, learned Additional Public Prosecutor appearing for the respondent. 9. The entire case is based on the ocular testimony of Kala (P.W. 1), Shanmugavel (P.W.2) and Michael J. Radsan (P.W.4). Challenging the above said conviction and sentence, Gobi (A1) has filed the present appeal. 8. Heard Mr.S.Palani Velayutham, learned counsel appearing for the appellant and Mr.S.Ravi, learned Additional Public Prosecutor appearing for the respondent. 9. The entire case is based on the ocular testimony of Kala (P.W. 1), Shanmugavel (P.W.2) and Michael J. Radsan (P.W.4). Kala (P.W.1), in her evidence, has stated that she (P.W.1), along with her son Jegan, went for the wedding reception of her husband's nephew Michael J. Radsan (P.W.4), on 04.06.2014; during dinner time, Gobi (A1) and his brother Madhan (A2), along with three others, whom she (P.W.1) could identify, but whose names she (P.W.1) does not know, picked up a quarrel and created a problem in the wedding reception house, which was questioned by her (P.W.1's) son Jegan; therefore, irked at that, while her (P.W.1's) son Jegan was having dinner around 11.30 p.m., all the five of them assaulted her (P.W.1's) son Jegan and Gobi (A1) took a stick (M.O.1) and hit on his (Jegan's) back head; since her son (Jegan) fainted, he (Jegan) was carried to Dr.Jeyasekharan Hospital & Nursing Home, Nagercoil, for treatment and thereafter, when the police came to the hospital, she (P.W.1) gave a complaint (Ex.P1). She (P.W.1) has identified the stick (M.O.1) that was allegedly used by Gobi (A1). 10. It may be pertinent to state here that Kala (P.W.1) was examined in chief on 04.01.2018. She (P.W.1) was not cross-examined on the same day i.e. 04.01.2018, but was recalled and cross-examined on 25.01.2018. 11. Mr.S.Palani Velayutham, learned counsel for the appellant, submitted that even in the intimation (Ex.P6) that was sent by Dr.Jeyasekharan Hospital & Nursing Home, Nagercoil, to the police, it is stated that a log of wood fell on his head and therefore, the theory that Gobi (A1) had assaulted Jegan loses all significance. 12. At the first blush, though the above argument did sound appealing, on a closer scrutiny of the materials on record, it is seen that had a log of wood fallen on the head of a person, there would have been no necessity for the hospital authority to intimate the same to the police. But, the fact remains that Jegan fainted and was unconscious, when he (Jegan) was taken to the hospital. In fact, he (Jegan) was not taken to the Government Hospital, but to a private hospital. But, the fact remains that Jegan fainted and was unconscious, when he (Jegan) was taken to the hospital. In fact, he (Jegan) was not taken to the Government Hospital, but to a private hospital. Therefore, it is natural that the relatives, who came to the wedding reception, would not have wanted to blow the incident out of proportion. However, the evidence of Kala (P.W.1) is substantially corroborated by Shanmugavel (P.W.2) and the bridegroom himself (Michael J. Radsan), who was examined as P.W.4. 13. The learned counsel for the appellant further contended that the appellant had no previous enmity against Jegan and therefore, the conviction of the appellant cannot be sustained. He also contended that Jegan had died of heart attack and not of any injury suffered by him due to the alleged incident. 14. In the cross-examination, Kala (P.W.1) has clearly stated that there was a contusion in the head of her son (Jegan), when he was taken to the hospital, which had resulted in further complications leading to his (Jegan's) death five days later on 09.06.2014. 15. We agree with the aforesaid submission, but the facts disclose that the appellant had taken a stick (M.O.1) and attacked Jegan resulting in he (Jegan) fainting at the place of occurrence itself and thereafter, dying five days later. Thus, on the proved facts, the conviction and sentence slapped on the appellant for the offence under Section 302 I.P.C., cannot be sustained and the appellant is to be convicted for the offence under Section 304(II) I.P.C. 16. Therefore, we are inclined to modify the conviction imposed on the appellant from one under Section 302 I.P.C. to one under Section 304(II) I.P.C. and sentence him to undergo five (5) years rigorous imprisonment. 17. In the result, *The criminal appeal is partly allowed; *The conviction and sentence imposed on the appellant, by judgment and order dated 26.07.2019, in S.C.No.460 of 2015, on the file of the I Additional District and Sessions Court, Tirunelveli, for the offence under Section 302 I.P.C. is hereby set aside. 17. In the result, *The criminal appeal is partly allowed; *The conviction and sentence imposed on the appellant, by judgment and order dated 26.07.2019, in S.C.No.460 of 2015, on the file of the I Additional District and Sessions Court, Tirunelveli, for the offence under Section 302 I.P.C. is hereby set aside. Instead, the appellant is convicted under Section 304(II) I.P.C. and sentenced to undergo rigorous imprisonment for five (5) years and to pay a compensation of Rs.1,00,000/- (Rupees one lakh only) to Kala (P.W.1), mother of Jegan, in default, to undergo rigorous imprisonment for one (1) year, apart from the fine amount and the default sentence imposed on him by the Trial Court. *Suspension of sentence granted by this Court, on 07.11.2019 in Crl.M.P.(MD) No.7603 of 2019 and the order dated 05.05.2020 in Crl.M.P.(MD) No.2940 of 2020 relaxing the appeal bail conditions imposed on the appellant stand cancelled. *Since the appellant is on bail, the respondent police is directed to immediately secure the appellant and produce him before the Trial Court to commit him to prison to serve out the period of sentence. *The period of sentence already undergone by the appellant shall be set off under Section 428 of the Code of Criminal Procedure.