(i) PW.1 is the daughter of the deceased.PW.2 is the husband of PW.1.PW.3 is another daughter.The accused, in the instant case, is the youngerbrother of the deceased.They were the residents of R.Kombaipatti.A few daysprior to the occurrence, the deceased sent his men to pick out groundnuts fromthe field.The same was objected to by the accused.Since there was a disputebetween them over the land, the workers returned.They informed the same to thedeceased.(ii) On 23.11.2004 at about 6.00 a.m., the deceased proceeded to thefield.They went near the field.They foundthe deceased and the accused were quarrelling over their land dispute.At thattime, the accused took MO.1 aruval, attacked him on his head and also ondifferent parts of the body.Not satisfied with that, he took a towel andstrangulated him.As a result, the deceased Sankar died instantaneously.Though PW.1 and PW.2 went nearby the occurrence, they were criminallyintimidated.(iii) PW.1 and others went to the respondent police station where PW.11was the Sub Inspector of Police on duty at 8.30 a.m., gave a report Ex.(Judgment of the Court was made by M.CHOCKALINGAM,J) Challenge is made to the judgment of Principal Sessions Division, Dindiguldated 5.4.2007 made in S.C.No.19 of 2006 whereby the appellant/sole accusedstood charged, tried and found guilty under sections 302 IPC and 506 (2) of IPCand awarded imprisonment for life and a fine of Rs.5,000/- with a defaultsentence of 3 years rigorous imprisonment for the first charges; and three yearsrigorous imprisonment and a fine of Rs.1,000/- with a default sentence of 9months rigorous imprisonment for the second charge.The short facts that are necessary for the disposal of this appeal canbe stated as follows:Onthe strength of which, a case came to be registered in Crime No.309/2004 underSections 302 IPC.Printed F.I.R Ex.P.5 was sent to the Court and to the higherofficials.(iv) On receipt of a copy of the F.I.R, PW.12, Inspector of Police,attached to the respondent police station, took up investigation, proceeded tothe scene of occurrence, made an inspection in the presence of witnesses andprepared an Observation Mahazer Ex.P.6 and also a rough sketch Ex.Heconducted inquest on the dead body of the deceased in the presence ofpanchayatdars and prepared an Inquest Report Ex.He recovered the materialsobjects available from the place of occurrence.(v) The dead body of the deceased was subjected to post-mortem by PW.7,attached to the Government Hospital, Dindigul and he found injuries as describedin the post-mortem certificate Ex.P.3 wherein he has opined that the deceasedwould appear to have died due to head injury, about 10-12 hours prior toautopsy.(vi) Pending investigation, the accused was arrested on 24.11.2004.During investigation, the accused gave a confessional statement and theadmissible part of that evidence was marked as Ex.Pursuant to theconfession, he produced an aruval MO.1 in the presence of witnesses and the samewas recovered under the cover of mahazer Ex.(viii) On completion of the investigation, PW.12 filed a final reportagainst the accused/appellant as per the charges.The case was committed to theCourt of Sessions.Necessary charges were framed.In order to substantiate the charges levelled against the accused, theprosecution examined 12 witnesses and relied on 14 Exhibits and 9 MOs.Oncompletion of the evidence on the side of the prosecution, the accused wasquestioned under Section 313 Cr.P.C. on the incriminating circumstances found inthe evidence of the prosecution witnesses, which was flatly denied on the partof the accused.No defence witness was examined.The trial Court after hearingthe arguments advanced by either side and on considering the materials availableon record, took the view that the prosecution has proved its case beyondreasonable doubts and found the accused/appellant guilty of the charges andawarded punishments as referred to above.Aggrieved over the same, the accusedhas brought forth this appeal before this Court.Advancing his arguments on behalf of the appellant, Mr. K.ThirumalaiRaj, learned senior counsel appearing for the appellant, would submit asfollows:-(i) In the instant case, the prosecution has only two eye-witnesses viz.PW.1 was the daughter.PW.2 was the son-in-law of the deceased.The deceased was actually in inimical terms with the accused since there was aland dispute.Thus, PW.1 and PW.2 were not only interested in the deceased butalso inimical to the accused.Their evidence if scrutinised should have beenrejected by the trial Court.(ii) Apart from that, their evidence is not only inconsistent to eachother but also self-contradictory.Under the circumstances, their evidence isnot worth mentioning to connect the accused with the crime.(iii) The ocular testimony projected by PW.1 and PW.2 was nevercorroborated with the medical evidence.(iv) The arrest, confession and the alleged recovery were all cooked upaffairs in order to strengthen the prosecution case.Thus, the prosecution hadno evidence worth mentioning to offer.(v) Even assuming that the prosecution has proved the fact that it was theaccused, who attacked the deceased and thereby caused death, it was neitherintentional nor deliberate because even as per the evidence of PW.1 and PW.2,there was a quarrel and in the quarrel, the accused attacked with aruval.However, injuries were found to be simple and actually, the occurrence had takenplace in the natural course.PW.7 Doctor has given his opinion that the injuryfound on the skull was the bane for his death and that would be possible byfalling on the ground also, for which the accused cannot be found guilty.(vi) Even though if the act of the accused found to be proved, it wouldonly attract the penal provision of Section 324 of IPC.Accordingly, this legalaspect has got to be considered by this Court.The Court heard the learned Additional Public Prosecutor on the abovecontentions.The Court paid its utmost attention to the submissions and made athorough scrutiny on the entire materials available on record.It is not a fact in controversy that one Sankar, the father of PW.1 wasdied out of homicidal violence in the occurrence that took place on 23.11.2004.Following the inquest made by the investigator, the dead body of the deceasedwas subjected to post-mortem by Doctor PW.7, who has given his opinion in Ex.P.3post-mortem certificate that the deceased died out of head injury, about 10 -12 hours prior to autopsy.The fact that the deceased died out of homicidalviolence was never questioned by the appellant at any stage of the proceedings.Hence, it has got to be recorded factually so.In order to substantiate the fact that it was the accused/appellant whoattacked him and caused his death, the prosecution has marched two witnesses.Itis true, PW.1 is the daughter and PW.2 is the son-in-law of the deceased.It isthe well settled position of law that merely on the ground of relationship ofthe witnesses, their evidence cannot be discarded.In the instant case, PW.1 andPW.2 have clearly spoken in one voice that when they were nearing the deceased,actually, there was a quarrel between the deceased and the accused, in which,the accused took an aruval and attacked the deceased on the head and not-satisfied with that, he took a towel and pressed his neck and the deceased diedinstantaneously.When PW.1 and PW.2 tried to rescue him, they were criminallyintimidated.The ocular testimony stood fully corroborated by the evidence ofPW.7 who opined that injury No.5 found on the skull was the reason for thedeath.The evidence of PW.1 and PW.2 inspires the confidence of the Court.Hence, the contention put-forth by the learned counsel for the appellant thatmerely falling on the ground, such an injury could be inflicted and that otherinjuries were simple and the death had not been brought out by the act of theaccused cannot be countenanced.Yet another circumstance is the recovery of weapon of the crime fromthe accused pursuant to his confession, which was recorded by the investigatorin the presence of two witnesses.That part of evidence remains unshakendespite the cross-examination.The lower Court has thoroughly accepted thatpart of evidence.All these would go to show that the prosecution has proved the factthat it was none but the accused who attacked his brother and caused his death.The accused had attacked the deceased with an aruval and injury No.5was actually caused by him.It is evident from the ocular testimony, whichstood fully corroborated by the medical evidence.It would be quite clear that this wordyaltercation caused sudden provocation in attacking the deceased with an aruvaland causing his death.However, the contention put-forth by the learned counselfor the appellant that the act would attract only Section 324 IPC can not beaccepted.However, the Court is of the considered opinion that it will beappropriate to convict the appellant under Section 304 (Part - II) of IPC andawarding 5 years of rigorous imprisonment would meet the ends of justice.Accordingly, the conviction and sentence under Section 302 and 506 (2) of IPCare set aside.Instead, the appellant/accused is convicted under Section 304(Part II) of IPC and awarded five years rigorous imprisonment.Fine amount, ifany, was already paid by the appellant under section 302 IPC, the same shall berefunded to the appellant.The conviction and sentence under Section 506(2)IPC are confirmed.The sentences are to run concurrently.The period of sentencealready undergone by the appellant shall be given set off.The Criminal Appealis disposed of accordingly.1.The Principal Sessions Judge, Dindigul.2.Inspector of Police, Eriyodu, Eriyodu Taluk, Dindigul District.(Crime No.309/2004).3.The Additional Public Prosecutor, Madurai Bench of the Madras High Court, Madurai.

Sections cited: Section 302 in The Indian Penal Code, Section 324 in The Indian Penal Code, Section 506 in The Indian Penal Code, Section 304 in The Indian Penal Code