(Prayer: Criminal Appeal is filed under Section 372 of the Code of Criminal Procedure, against the judgment dated 28.06.2022 in S.C.No. 168 of 2019 on the file of the Principal Sessions Judge, Ramanathapuram and set aside the same.)

N. Anand Venkatesh, J.

1. The sole accused assails the judgment passed by the Principal Sessions Judge, Ramanathapuram, made in S.C.No.168 of 2019 dated 28.06.2022 in this appeal, wherein the trial court convicted the accused person for offence under Section 302 of IPC and sentenced him to undergo life imprisonment and to pay a fine of Rs.10,000/-, in default to undergo two months simple imprisonment.

2. The case of the prosecution is that, the brother of the de-facto complainant (PW1) was residing along with his elder son Palani and there was some dispute between Solaimalai and Palani regarding a landed property. On 05.04.2019, the said Palani is said to have attacked and murdered Solaimalai. The same resulted in a complaint (Ex.P1) given by PW1, which resulted in the registration of FIR (Ex.P9) by the Sub-Inspector of Police (PW15) in Crime No.69 of 2019 for offence under Section 302 of IPC.

3. The investigation was taken up by PW16, who visited the scene of crime on 06.04.2019 at about 10.00 AM and in the presence of witnesses prepared the Observation Mahazar (Ex.P2) and the Rough Sketch (Ex.P10). In the presence of the Panchayatars, inquest on the dead body was conducted and Inquest Report (Ex.P11) was prepared. At about 13.15 hours, MO3 to MO16 were seized under Ex.P7.

4. In the course of investigation, the accused person was arrested on 06.04.2019 at about 19.30 hours at Govindamangalam Bus Stop and his confession statement was also recorded in the presence of witnesses. Based on the confession, MO1 and MO2 were seized under Athatchi Ex.P6. The accused person was produced before the Judicial Magistrate and was remanded to judicial custody.

5. The body of the deceased was sent for postmortem and PW9 conducted the postmortem and issued the postmortem certificate (Ex.P4) and the following injuries were noted:

                     “A 73 year old lying in supine position with hands along body side.

                     Rigor mortis present in all four limbs. Eyes closed, blood present. Mouth opened, tongue protruded. Nasal blood and right ear bleeding present.

                     Open fracture over right forearm present below the elbow joint. Both ulna and radial fracture present at middle third. Laceration present on:

                     (1) Left eyebrow side (3 cm × 2 cm x 0.5 cm).

                     (2) Forehead – multiple lacerations measuring (3 cm × 0.5 x 0.5 cm). Two measuring 2 cm × 0.5 cm × 0.5 cm and three measuring 1 cm × 0.5 cm × 0.5 cm.

                     (3) Occipital region (3 cm × 0.5 cm × 0.5 cm). On right side of occipital region laceration (3 cm × 1 cm × 0.5 cm); laceration on left side of occipital region (1 cm × 0.5 cm × 0.5 cm).

                     (4) Laceration over behind right ear (2 cm × 0.5 cm × 0.5 cm) and (2 cm × 0.5 cm × 0.5 cm).

                     (5) Laceration on right arm (0.5 cm x 0.5 cm × 0.5 cm) on right side.

                     (6) Right side zygomatic bone fracture present.

                     (7) Laceration over centre and left lower lip present (2 cm × 0.5 cm x 0.5 cm).

                     (8) Old fracture present on left lower leg, below knee joint. Stool passed, semen not present.

                     On opening thorax cavity:

                     Ribs – Normal, no fracture.

                     Lungs – Bilateral lungs normal, congested.

                     Heart – Normal, congested.

                     On opening abdominal cavity:

                     Stomach – Semi-solid food particles present.

                     Liver – Normal, congested.

                     Small intestine – Food particles present.

                     Large intestine – Empty.

                     Kidneys – Bilateral kidneys normal.

                     Spleen – Normal, congested.

                     On opening cranial cavity:

                     Skull bone – Intact, no fracture.

                     Meninges – Intact.

                     Brain – Intracerebral hemorrhage present below occipital region.

                     Opinion as to cause of death:

                     Viscera preserved and sent for chemical analysis, report pending. The deceased appears to have died of hypovolemic shock and head injury.”

6. The final opinion as to the cause of death was stated as hypovolemic shock and head injury.

7. The investigation officer recorded the statements of witnesses under Section 161 CrPC. and collected all the relevant materials and filed the final police report before the District Munsif cum Judicial Magistrate, Thiruvadanai, which was taken on file in PRC No.4 of 2019. The copies were served on the accused person under Section 207 CrPC. The case was thereafter committed to the Principal Sessions Judge, Ramanathapuram, which was taken on file in SC No.168 of 2019.

8. The trial court framed charges against the accused person for offence under Section 302 of IPC and the accused person denied the charges.

9. The prosecution examined PW1 to PW17 and marked Exhibits P1 to P15 and relied upon MO1 to MO16.

10. The incriminating circumstance in evidence was put to the accused person when he was examined under Section 313 CrPC, and he denied the same as false.

11. The accused person did not examine any witness nor did he rely upon any document.

12. The trial court on considering the facts and circumstances of the case and on appreciation of the oral and documentary evidence, came to the conclusion that the prosecution has proved the case beyond reasonable doubt and accordingly convicted and sentenced the accused person in the manner stated supra. Aggrieved by the same, the present appeal has been filed before this Court.

13. This Court has carefully considered the submissions made on either side and the materials available on record.

14. The prosecution examined PW1 to PW4, PW6 and PW10 as eyewitnesses. PW1 is the brother of the deceased. PW2 and PW3 are the daughters-in-law of PW1. PW6 is the son of PW1 and PW10 is the wife of PW1. PW4 is the neighbour.

15. The learned counsel for the appellant submitted that PW1 was aged about 80 years and he had very poor eyesight. Even during cross- examination, he had admitted the said fact and was not very clear about the identity of the accused person. It was submitted that except the evidence of PW1, none of the other eyewitnesses really supported the case of the prosecution.

16. PW1, who is the brother of the deceased, is a natural witness who was aged about 80 years and was residing next to the house of the deceased. He has clearly spoken about the wordy quarrel between the deceased and the accused person and he was well aware of the voice of the accused person, since he is none other than the son of the deceased and nephew of PW1.

17. It is also relevant to take note of the evidence of PW3. Even though PW3 did not completely support the case of the prosecution, in the chief examination she has specifically stated that the accused person was present in the house of the deceased and they were having a wordy quarrel. To that extent, the evidence of PW3 supports the evidence of PW1.

18. Even if on a demurrer, it is assumed that there were no clear eyewitnesses to the incident, there are sufficient materials to establish the involvement of the accused person in this case and the occurrence. The dispute between the father and the son, the fact that the accused person was present along with the deceased just before the incident, the wordy quarrel that took place between the accused and the deceased, the postmortem report which noted the injuries and the non-explanation of the accused person as to what happened inside the house which results in an adverse inference drawn against the accused person, forms a perfect chain of circumstances and each of the link has been proved by the prosecution. Therefore, even if the eyewitness account is not very strong, on circumstantial evidence, the prosecution has sufficiently proved the occurrence beyond reasonable doubt.

19. The next issue is as to whether on the proven facts, the offence of murder under Section 300 of IPC has been made out.

20. On a careful assessment of the evidence available on record, it is seen that the present case can be brought within Exception 4 to Section 300 of IPC. There was always a dispute between the father and son and on the fateful day there was a fight between the father and son upon a sudden quarrel. Considering the material object that was used (wooden stick), it is quite clear that it was not a premeditated murder, but a culpable homicide not amounting to murder which took place in the spur of the moment. In view of the same, on the proven facts, the conviction and sentence has to be modified to one under Section 304 Part II of IPC.

21. In the light of the above discussion, this criminal appeal is partly allowed in the following terms:

(a) The judgment passed by the Principal Sessions Judge, Ramanathapuram, made in S.C.No.168 of 2019 dated 28.06.2022, is modified to one under Section 304 (ii) of IPC;

(b) The appellant is sentenced to undergo three and a half years of rigorous imprisonment and to pay a fine of Rs.10,000/-, in default to undergo two months simple imprisonment;

(c) The period of sentence already undergone by the appellant shall be set off under Section 428 of Cr.P.C.;

(d) The appellant shall surrender before the District Munsif cum Judicial Magistrate, Thiruvadanai and he shall be confined to the jail to undergo the remaining period of sentence, if any;

(e) In the absence of surrender, the learned Judicial Magistrate, shall ensure that the appellant undergoes the remaining period of sentence, if any.