JUDGMENT : M.Jothiraman, J. Challenging the judgment dated 08.08.2019 passed in S.C.No.146 of 2014 on the file of the II Additional District and Sessions Court, Ranipet, Vellore District, the appellant has preferred the above appeal. 2. The prosecution story runs thus: 2.1 PW1—Vinothkumar, who is the brother of the deceased Vijayakanth, deposed that on 11.03.2013, a cart festival procession was conducted and the chariot proceeded from Karai towards Ranipet; while the chariot was proceeding near Ranipet Pillaiyar Koil, all the participants in the festival played drums and danced; at that time, the appellant has hit Vijayakanth; therefore, he (PW1) asked the appellant to move from the place and dance; enraged over the same, the appellant scolded him in unparlimentary words and again continued the dance; while dancing, the appellant assaulted his brother Vijayakanth; thereafter, the appellant and Vijayakanth attacked each other and he (PW1) pacified them and went to the front side of the chariot; the appellant suddenly took a knife (M.O.1) and tried to attack Vijayakanth; PW7 tried to prevent the same, in which, PW7 sustained injuries on his forehead and fell down; in between the appellant stabbed Vijayakanth on his stomach by using the knife (M.O.1); afraid of the appellant, Vijayakanth ran away from the place and proceeded towards Myan Sahib’s lane, Vijayakanth fell down in front of one house; taking advantage of the same, the appellant sat on Vijayakanth and stabbed on his chest; while he (PW1) tried to catch hold of the appellant, the appellant fled away from the place; Vijayakanth died on the spot itself; he (PW1) along with others took Vijayakanth to Walaja Hospital, where, Vijayakanth was declared brought dead; thereater, he (PW1) went to Ranipet Police Station and lodged a complaint (Ex.P1) and also identified the dresses worn by Vijayakanth viz. bloodstained blue colour jeans pant (M.O.2), bloodstained black striped green shirt (M.O.3), bloodstained white color vest (M.O.4) and bloodstained neck vest (M.O.5). 2.2 PWs.2, 3, 4, 5, 6 and 7 have also deposed similarly to the version of PW1. 2.3 PW8—Nethaji, who is the brother of PW7, deposed that there was a quarrel in the cart festival procession, during which, his brother PW7 got injured on the forehead and therefore, he took his brother PW7 to Rajeshwari Hospital for taking treatment. 2.2 PWs.2, 3, 4, 5, 6 and 7 have also deposed similarly to the version of PW1. 2.3 PW8—Nethaji, who is the brother of PW7, deposed that there was a quarrel in the cart festival procession, during which, his brother PW7 got injured on the forehead and therefore, he took his brother PW7 to Rajeshwari Hospital for taking treatment. 2.4 PW14—Pazhani, Village Administrative Officer (VAO), deposed that on 26.03.2013 the Inspector of Police, Ranipet Police Station, called him over phone and asked him to come to the police station to enquire the appellant; therefore, he went to the police station along with Ramachandran (PW15), Village Assistant, around 4.00 p.m. and on enquiry, the appellant stated that he will let them know the whereabouts of the knife (M.O.1) used in the offence and dresses worn by him during the occurrence; pursuant to the same, the appellant has shown the knife (M.O.1) in the drainage opposite to the house of one Advocate Giri and the dresses in the bathroom of another house; thereafter, in the presence of himself and PW15, the appellant gave confession statement, in which, he and PW15 signed as witnesses; they have also signed in the recovery mahazars (Exs.P4 & P5). 2.5 PW15—Ramachandran, Village Assistant, deposed similarly to the version of PW14. 2.6 PW23—Arunkumar, Sub-Inspector of Police, deposed that on 11.03.2013 at 23.00 hours, he received the complaint (Ex.P1) from PW1 and registered the case in Crime No.146 of 2013 for the offences under Sections 294 (b), 324 and 302 IPC and prepared the printed FIR (Ex.P17) and forwarded the same for further investigation. 2.6 PW23—Arunkumar, Sub-Inspector of Police, deposed that on 11.03.2013 at 23.00 hours, he received the complaint (Ex.P1) from PW1 and registered the case in Crime No.146 of 2013 for the offences under Sections 294 (b), 324 and 302 IPC and prepared the printed FIR (Ex.P17) and forwarded the same for further investigation. 2.7 PW25—Parthasarathy, Inspector of Police, Ranipet Police Station, deposed that he received a copy of the FIR (Ex.P17) around 12.00 at night and took up the case for investigation and went to the scene of occurrence; on the next day i.e. on 12.03.2013 early morning, he went to the place of occurrence, prepared observation mahazar (Ex.P2) and drawn rough sketch (Ex.P18) in the presence of the witnesses PWs.10 and 11; thereafter, he went to the Government Hospital, Walaja and conducted inquest over the body of Vijayakanth at 8.00 a.m. in the presence of panchayatars and witnesses and prepared inquest report, examined witnesses and recorded their statements; thereafter, based on the instructions of the Deputy Superintendent of Police, Vellore, he went to other State in connection with some other case to arrest an accused and therefore, he handed over the case to PW24, Inspector of Police, All Women Police Station, Ranipet. 2.8 PW24—Mangayarkarasi, Inspector of Police, deposed that as per the instructions received from the Deputy Superintendent of Police, Vellore, she has conducted further investigation in Crime No.146 of 2013, visited the scene of occurrence; since PW25 has already prepared the observation mahazar (Ex.P2) and drawn rough sketch (Ex.P18), she has not chosen to prepare the same; later, she came to know that the appellant surrendered before the V Metropolitan Magistrate Court, Egmore, Chennai and she has filed an application to take the appellant into police custody and she has taken the appellant on police custody on 26.03.2013; on enquiry, the appellant has voluntarily given confession statement and the same has been recorded in the presence of PW14 and PW15 and the admissible portion of the voluntary confession statement of the appellant was marked as Ex.P3; pursuant to the confession statement of the appellant, they went to Ranipet Bazaar street and opposite to the house of one Advocate Giri, the appellant took the knife (M.O.1) from the drainage and the same has been recovered under the mahazar (Ex.P4) at 18.15 hours and thereafter at 19.00 hours, he took them to his house and handed over the dresses, which were worn by him at the time of occurrence viz. bloodstained blue colour jeans pant (M.O.2) and bloodstained black striped green shirt (M.O.3) and the same were recovered under mahazar (Ex.P5); thereafter, the appellant was remanded in judicial custody; the seized properties were sent to the Court; thereafter, she handed over the investigation to PW25. 2.9 PW25—Parthasarathy, in continuation of his investigation, seized the dresses worn by Vijayakanth and the same were sent to the Court under Form 95 (Ex.P19); he also examined the witnesses and recorded their statements. 2.10 PW22—Dr.Revathi, deposed that she has received the requisition letter (Ex.P14) to conduct autopsy on the body of Vijayakanth, pursuant to which, she conducted postmortem and has noted the following injuries: “Stab injury 3 in number; 2 on left side and one on right lateral side 4 x 1.5 cm and width full thickness of chest wall; all the stab injuries are in same dimension. Both eyes opened; abrasion towards right eyebrow 3 x 3 cm and 1 x 2 cm over the left cheek contusion of 2 x 1 cm over the left cheek. Laceration of 1 x 1 cm in left eyebrow. Hyoid bone intact. Both eyes opened; abrasion towards right eyebrow 3 x 3 cm and 1 x 2 cm over the left cheek contusion of 2 x 1 cm over the left cheek. Laceration of 1 x 1 cm in left eyebrow. Hyoid bone intact. Opening of thorax: fracture of rib 3 on left side, fourth rib fracture on right lateral side of chest. Bilateral haemorrhage present. Long right 450 gm. 4X 1 cm injury in right lower lobe; through & through injury: c/s pale left lungs: 440 gm c/s pale Heart: 2 stab injury 4 x 1 cm through & through injury present. Anterior surface and posterior surface of the heart: 4 x 1 x 1 cm injury present in pericardiam. Opening of abdomen: Stomach undigested food about 300 ml and alcohol smell present. Intestine: filled with gas. Liver 1500 g c/s pale. Spleen 100 gm c/s pale kidney right 100 gm c/s pale left 100 gm c/s pale.” She (PW22) issued postmortem certificate (Ex.P15) and opined that Vijayakanth would appear to have died 16-18 hours prior to postmortem due to injury to vital organs. PW22, further deposed that one Dr.V.Thilakam, who worked along with her, issued accident register (Ex.P16) after examining PW7; as per the accident register (Ex.P16), there was an alleged assault by a known person on 11.03.2013 at 6.00 p.m. in Ranipet and the said doctor has noticed 12 x 2 cm linear lacerated wound over the right forehead extends up to right earlobe and PW7 discharged from the hospital on his own on the next day at 8.00 a.m. 2.11 PW11—Panjatcharam, deposed that he has signed as a witness in the observation mahazar (Ex.P2). 2.12 PW16—Mubashwer Ussain, Head Constable, deposed that he has handed over the requisition letters viz. for postmortem (Ex.P6), for sending internal organs for chemical analysis (Ex.P7) and for study of hyoid bone (Ex.P8) of the Inspector of Police to the experts concerned for examination; he has handed over the dead body of Vijayakanth to the relatives after conducting postmortem. 2.13 PW20—Ashokkumar, Deputy Director, Regional Forensic Science Laboratory, Vellore, deposed that he has issued biological report (Ex.P10). 2.14 PW25—Parthasarathy, Inspector of Police, in continuation of his investigation, examined the doctor, who treated PW7 at Walaja Government Hospital and has obtained accident register (Ex.P16) and also examined all the witnesses and recorded their statements. 2.13 PW20—Ashokkumar, Deputy Director, Regional Forensic Science Laboratory, Vellore, deposed that he has issued biological report (Ex.P10). 2.14 PW25—Parthasarathy, Inspector of Police, in continuation of his investigation, examined the doctor, who treated PW7 at Walaja Government Hospital and has obtained accident register (Ex.P16) and also examined all the witnesses and recorded their statements. 2.15 After completing the investigation and based on the evidence collected, the Investigating Officer (PW25) filed a final report in P.R.C.No.1 of 2014 before the Judicial Magistrate, Ranipet, against the appellant for the offences under Sections 294 (b), 324, 450 and 302 IPC . 2.16 On appearance of the appellant, the provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Court of Session in S.C.No.146 of 2014 and was made over to the II Additional District and Sessions Court, Ranipet, Vellore District, for trial. 2.17 The trial Court framed the charges under Sections 294 (b), 324, 450 and 302 IPC against the appellant herein. When questioned, the appellant pleaded 'not guilty'. 2.18 To prove the guilt of the appellant, the prosecution examined twenty five witnesses and marked nineteen exhibits and six material objects. 2.19 After completion of prosecution side evidence, when the appellant was questioned under Section 313 Cr.P.C. on the incriminating circumstances appearing against him, he denied the same. No witness was examined on the side of the appellant nor any document marked. 2.20 After considering the oral and documentary evidence and upon hearing either side, the trial Court, by judgment dated 08.08.2019 in S.C.No.146 of 2014, has convicted and sentenced the appellant as under: Provision under which convicted Sentence Section 294(b) IPC Fine of Rs.500/-, in default to undergo one month simple imprisonment. Section 324 IPC One year rigorous imprisonment. Section 302 IPC Life imprisonment and fine of Rs.5000/-, in default to undergo three months rigorous imprisonment. The aforesaid sentences were ordered to run concurrently. 2.21 Aggrieved over the same, the appellant has preferred the above appeal. 3. Section 324 IPC One year rigorous imprisonment. Section 302 IPC Life imprisonment and fine of Rs.5000/-, in default to undergo three months rigorous imprisonment. The aforesaid sentences were ordered to run concurrently. 2.21 Aggrieved over the same, the appellant has preferred the above appeal. 3. Submissions made by the learned Senior Counsel representing the learned counsel appearing for the appellant/accused: (i) The appellant has no intention or motive to attack anyone much less Vijayakanth and PW7 and only because Vijayakanth assaulted the appellant first, the appellant got angered and said to have attacked Vijayakanth and if Vijayakanth did not attack the appellant, the occurrence would not have taken place, but, the occurrence is said to have taken place in a spur of moment without any motive or intention and hence, even assuming without admitting the allegations in the complaint (Ex.P1), the ingredients of the offence under Section 302 IPC would not be made out, but, only the offence under Section 304 (II) would be made out, for which, lesser punishment would be awarded to the appellant instead of the maximum punishment of life imprisonment. (ii) The Court below failed to see that as per the alleged confession statement of the appellant, the Investigating Officer said to have recovered the knife (M.O.1), which is said to have used by the appellant at the time of occurrence and the said knife (M.O.1) was taken out by PWs.18 and 19 from the drainage, but, PW18 deposed in Court that he was not able to remember about the said knife (M.O.1), which was shown to him in Court and hence, the evidence of PW18 ought not to have been accepted. (iii) The Court below failed to see that there was no prior enmity between the appellant and Vijayakanth and there was no proper explanation to show that the appellant had a grudge or motive to murder Vijayakanth in this case. (iii) The Court below failed to see that there was no prior enmity between the appellant and Vijayakanth and there was no proper explanation to show that the appellant had a grudge or motive to murder Vijayakanth in this case. (iv) The evidence of the prosecution witnesses are contrary to each other and more particularly, PW1 did not specifically mention the alleged scene of occurrence, but, he has stated that two persons were fighting each other and that he has lodged the complaint (Ex.P1) to the police at 6.30 p.m., but, in the complaint (Ex.P1), it has been mentioned that the complaint (Ex.P1) has been given by him at 11.00 p.m., but, prior to that the Inspector of Police came to the hospital, which creates a suspicion about the complaint (Ex.P1) given by PW1. (v) It is quite unbelievable to state that when thousands of people were proceeding in the cart festival procession through a lane of 10 feet breath, 10 persons were chasing the appellant and at the time appellant threw away the knife (M.O.1). (vi) Further, the said injured PW7 was not treated at the Government Hospital, Walaja and it is also unbelievable to state that the knife (M.O.1) taken out from the drainage after eleven days after the occurrence was seen unrusted. (vii) PW20—Ashokkumar, Deputy Director, Regional Forensic Science Laboratory, Vellore and PW22—Dr.Revathi, who conducted postmortem, had deposed contrary evidence that Vijayakanth had consumed liquor at the time of occurrence. (viii) The Court below failed to note that though it is stated in the postmortem report (Ex.P15) that there was an injury in the cheek of Vijayakanth, there was no specific mention as to where and to what extent that injury was caused to Vijayakanth. (ix) The prosecution has failed to prove its case beyond all reasonable doubts as against the appellant and therefore, the conviction of the appellant under the aforesaid offences is unsustainable in law and the same is liable to be set aside. 4. Per contra, the learned Additional Public Prosecutor appearing for the respondent would submit that PW1 is the eyewitness to the occurrence. 4. Per contra, the learned Additional Public Prosecutor appearing for the respondent would submit that PW1 is the eyewitness to the occurrence. Further, the evidence of the injured witness PW7 has corroborated the evidence of PW2 with regard to the wordy quarrel between Vijayakanth and appellant and while so, the appellant took the knife (M.O.1) and tried to assault to Vijayakanth and when PW7 tried to prevent the same, he sustained the injuries. He would further submit that the appellant has an intention and motive to attack Vijayakanth, since he has taken the knife (M.O.1) and attacked Vijayakanth and hence, the occurrence is said to have taken place not in a spur of moment. Further, the recovery of the knife (M.O.1) from the appellant in pursuance to the confession statement has been established through the evidence of PW1, PW14 and PW15. The injuries sustained by Vijayakanth has been clearly established through the evidence of PW1 and PW22, doctor who conducted autopsy. The contention of the learned Senior Counsel appearing for the appellant that there was no previous enmity between the appellant and Vijayakanth is not acceptable one, since the appellant chased Vijayakanth with the knife (M.O.1) with an intention to assault Vijayakanth and attacked him with the knife (M.O.1) three times, due to which, Vijayakanth died on the spot. Hence, there is no merit in this appeal and the same is liable to be dismissed. 5. We have considered the submissions made on either side and perused the materials available on record. 6. It is the specific case of the prosecution that as per the complaint (Ex.P1) given by PW1 that the alleged occurrence had taken place arising out of a wordy quarrel between Vijayakanth and the appellant on 11.03.2013 at 4.00 p.m. The appellant was dancing in the cart festival procession and when the chariot was nearing Pillaiyar Koil at Ranipet, the appellant is said to have dashed against Vijayakanth, as a result of which, PW1 asked the appellant to dance away from them, for which, the appellant is said to have abused PW1 in filthy language and danced in the same place and therefore, at first Vijayakanth assaulted the appellant and enraged over the same, the appellant is said to have attempted to stab Vijayakanth with the knife (M.O.1) and at that time, PW7 came to his rescue, but, sustained injury and fell down. The appellant stabbed Vijayakanth with the knife (M.O.1), which resulted in his death. 7. The prosecution has relied upon the following circumstances: (1)Eyewitness (2)Recovery (3)Medical evidence (1) Eyewitness: (i) PW1 is the brother of Vijayakanth. In his evidence, he has stated that on 11.03.2013, around 4.00 p.m. during cart festival procession near Pillayar Koil at Ranipet, the appellant dashed against Vijayakanth and when the same was questioned by PW1, the appellant abused him in filthy language, as a result of which, first, Vijayakanth assaulted the appellant and thereafter, the appellant and Vijayakanth attacked each other. PW1 prevented them and went to the front side of the cart procession. The appellant took the knife (M.O.1) and attempted to stab Vijayakanth. At that time, PW7 came to the rescue. As a result, PW7 sustained injury on his forehead and fell down and the appellant had stabbed Vijayakanth on his stomach with the knife (M.O.1), due to which, blood oozed from the injury, afraid of which, Vijayakanth ran away from the place, but, the appellant chased Vijayakanth and stabbed him on his chest with the knife (M.O.1). When PW1 tried to catch the appellant, he ran away from the place and PW1 found that Vijayakanth died. However, PW1 took him to Walaja Government Hospital, where, Vijayakanth was declared brought dead. (ii) PW7 deposed that on 11.03.2013 at 5.00 p.m., cart festival procession was held, while they were going with the chariot, there was a quarrel between the appellant and Vijayakanth. They pacified them. Thereafter, the appellant went behind the chariot, suddenly took the knife (M.O.1) and tried to attack Vijayakanth. When PW7 prevented the same, he (PW7) sustained injury on his forehead and fell down and thereafter, he was taken to the hospital. (iii) From the evidence of PW1 and PW7, the prosecution clearly prove that the appellant had stabbed Vijayakanth by using the weapon viz. knife (M.O.1) and during such occurrence, PW7 had also sustained injury. When PW7 prevented the same, he (PW7) sustained injury on his forehead and fell down and thereafter, he was taken to the hospital. (iii) From the evidence of PW1 and PW7, the prosecution clearly prove that the appellant had stabbed Vijayakanth by using the weapon viz. knife (M.O.1) and during such occurrence, PW7 had also sustained injury. (2) Recovery: (i) As per the evidence of PW14-Pazhani, Village Administrative Officer, on 26.03.2013 the Inspector of Police, Ranipet, called him over phone and asked him to come to the police station to enquire the appellant and therefore, he went to the police station along with Ramachandran (PW15), Village Assistant, around 4.00 p.m. and on enquiry, the appellant stated that he will let them know the whereabouts of the knife (M.O.1) used in the offence and dresses worn by him during the occurrence; pursuant to the same, the appellant has shown the knife (M.O.1) in the drainage opposite to the house of Advocate Giri and dresses in the bathroom; thereafter, in the presence of himself and PW15, the appellant gave confession statement, in which, he and PW15 signed as witnesses; they have also signed in recovery mahazars (Exs.P4 & P5). (ii) PW15-Ramachandran, Village Assistant, deposed similarly to the version of PW14. (iii) PW24, Inspector of Police, deposed that as per the instructions received from the Deputy Superintendent Police, Vellore, she has conducted further investigation in Crime No.146 of 2013, pursuant to which, she has taken the appellant on police custody on 26.03.2013. During enquiry, the appellant has voluntarily given confession statement (admissible portion of the confession is Ex.P3) and the same has been recorded in the presence of PW14 and PW15. In pursuance to the confession statement of the appellant, they went to Ranipet Bazaar Street opposite to the house of one Advocate Giri took the knife (M.O.1) from the drainage and the same has been recovered under the mahazar (Ex.P4) at 18.15 hours and thereafter at 19.00 hours, the dresses worn by the appellant at the time of occurrence viz. bloodstained blue colour jeans pant (M.O.2), bloodstained black striped green shirt (M.O.3) were recovered under the mahazar (Ex.P5). bloodstained blue colour jeans pant (M.O.2), bloodstained black striped green shirt (M.O.3) were recovered under the mahazar (Ex.P5). (iv) The prosecution has proved the fact that in pursuance of the confession statement (Ex.P3), the accused identified and handed over the knife (M.O.1) from the drainage and also handed over bloodstained blue colour jeans pant (M.O.2) and bloodstained black striped green shirt (M.O.3), through the evidence of PWs.14, 15 & 24. (3) Medical evidence: (i) PW22—Dr.Revathi, in her evidence, has stated that she has received the requisition letter (Ex.P14) to conduct autopsy on the body of Vijayakanth, pursuant to which, she conducted postmortem and issued postmortem certificate (Ex.P15) and opined that Vijayakanth would appear to have died 16-18 hours prior to postmortem due to injury to vital organs. It is further stated in her evidence that one Dr.V.Thilakam, who worked along with her, issued accident register (Ex.P16) after examining PW7, as per which, there was an alleged assault by a known person on 11.03.2013 at 6.00 p.m. in Ranipet and the said doctor has noticed 12 x 2 cm linear lacerated wound over the right forehead extends up to right earlobe and PW7 discharged from the hospital on his own on the next day at 8.00 a.m. (ii) The medical evidence of PW22 has been corroborated by the evidence of PWs.1 & 7. From the medical evidence, the prosecution has proved that the death of Vijayakanth is a homicidal one. 8. This Court is of the view that from the evidence of PWs.1 & 7, it is clear that the appellant has no intention or motive to attack Vijayakanth and PW7 and only Vijayakanth assaulted the appellant first, then, the appellant got enraged and attacked Vijayakanth. Further from the evidence of PW1, it is seen that the appellant and Vijayakanth assaulted each other and PW1 and PW7 intervened and pacified them. The occurrence is said to have been taken place in a spur of moment without any motive or intention. Therefore, the ingredients for the offence under Section 302 IPC are not made out, but, only the offence under Section 304 (I) is made out. 9. In light of the above discussion, there are merits in this appeal and this Court is inclined to modify the conviction imposed on the appellant for the offence under Section 302 IPC to Section 304 (I) and sentenced him to undergo ten years rigorous imprisonment. 9. In light of the above discussion, there are merits in this appeal and this Court is inclined to modify the conviction imposed on the appellant for the offence under Section 302 IPC to Section 304 (I) and sentenced him to undergo ten years rigorous imprisonment. 10. In the result: i. This criminal appeal is partly allowed; ii. The conviction and sentence imposed on the appellant for the offence under Section 302 IPC are set aside and the appellant is convicted of the offence under Section 304 (I) and sentenced to undergo ten years rigorous imprisonment; iii.The sentence of fine shall remain the same; and iv. The trial Court is directed to secure the custody of the appellant/appellant and send him to prison to undergo the remaining period of sentence.