(Prayer: Criminal appeal filed under Section 374(2) of Cr.P.C., to call for the records and set aside the impugned judgment of the conviction and sentence passed by the III Additional District and Sessions Judge, Tiruchirapalli in SC No.178 of 2021 dated 23.06.2022 and allow the appeal.)

P. Dhanabal, J.

1. Challenging the conviction and sentence rendered by the learned III Additional District and Sessions Judge, Tiruchirapalli in SC No.178 of 2021 dated 23.06.2022, the present criminal appeal has been filed by the appellant.

2. The trial Court convicted the appellant for the offence under Section 302 of IPC and sentenced to undergo life imprisonment and also to pay a fine of Rs.5000/- indefault to undergo three years simple imprisonment.

3. The appellant is the son of the deceased/Kalarani. The case of the prosecution is that the appellant used to go outside the village and come to his native place few time in the year and whenever he come to his native place he used to stay along with her mother/deceased Kalarani and he was a drunkard . The deceased was a diabetic patient and she was cared by her another son Ravi Jeyakumar/P.W.1. On 06.05.2020 at about 9.30 a.m., when the said Ravi Jeyakumar/complainant went to his mother’s house along with his wife /P.W.2Glory Penita at that time the appellant scolded his mother/deceased in filthy language and demanded money for his expenses and when his mother refused to give money he assaulted on her head by wooden log saying that if you not giving money you should not live, die, thereby the appellant caused injuries on both side of the head, right side of the face, thereafter she was taken to Lalgudi hospital where the doctor referred the deceased to Government Hospital, Trichy where she died, thereby another son of the deceased P.W.1 had lodged complaint/Ex.P.1.

               3.1. Based on the said complaint, P.W.20 had registered First Information Report/Ex.P.13 in Crime No.1221 of 2020 on the file of the respondent police. Thereafter P.W.21 had taken the case for further investigation and went to place occurrence, prepared observation mahazhar/Ex.P.2, rough sketch/Ex.P.14. Thereafter he seized blood stained soil and ordinary soil through mahazhar/Ex.P.3 and thereafter he went to the Government Hospital, Trichy conducted inquest and prepared inquest report/Ex.P.15 and thereafter he examined some witnesses and recorded their statement and on 06.05.2020 at about 5.30pm., he arrested the appellant near Mandurai bus stop and at that time the appellant gave a voluntary confession statement in the presence of witnesses.

               3.2.Based on the disclosure statement of the appellant he seized the material object M.O.1 through seizure mahazhar and thereafter the appellant along with the material objects were remanded to judicial custody and thereafter he seized the dress materials of the deceased and thereafter on 12.06.2020 he examined the doctor who has give first aid to the deceased and thereafter on 24.07.2020 he examined the doctor who conducted autopsy on the body of the deceased, thereafter he sent the blood stained material objects to the forensic lab and obtained opinion and after completion of investigation he filed final report as against the appellant.

               3.3. On appearance of the accused, and compliance of Section 207 of Cr.P.C., finding that the case was exclusively triable by the Court of Sessions the learned Magistrate had committed the case to the Court of Sessions and it was made over to the learned learned III Additional District and Sessions Judge, Tiruchirapalli in SC No.178 of 2021 for trial.

               3.4. After perusing the case records and hearing both sides the trial Court has framed charges as against the appellant for the offence under Section 302 of IPC. The above charge was read over and explained to the appellant. The appellant denied the charges and claimed to be tried.

               3.5. The prosecution examined P.W. 1 to P.W.21 and marked exhibits Ex.P.1 to P.18 and material objects M.O.1 to M.O.4 were produced. After completion of prosecution witnesses the appellant was examined under Section 313 (1)(b) of Cr.P.C., with regard to the incriminating circumstances appearing against him, he denied the same as false. On the side of the appellant no one was examined and no documents were marked.

               3.6. After analyzing the evidence and upon hearing both sides, the trial Court has convicted the appellant herein for the offence as stated supra. Aggrieved by the said judgment of conviction the present appeal has been filed by the first accused.

4. The learned counsel appearing for the appellant would submit that respondent police has registered a false case against the appellant and the deceased is none other than the mother of the appellant. P.W.1 and 6 are the sons of the deceased and P.W.2,7 and 8 are the daughters-in -law of the deceased. P.W. 3to 5 are neighbours and PW. 12 is the mahazhar witness,P.W.13 is the recovery mahazhar witness and P.W.14 is the doctor where the deceased was brought for treatment and P.W.15 is the doctor who conducted autopsy on the body of the deceased, PW.20 is the Sub Inspector of Police who registered First Information Report and P.W. 21 is the Investigation officer who investigated the case and filed final report. The above said witnesses have not made out prima facie case as against the appellant

               4.1. PW.1 and .P.W.2 are the said eye witnesses and that their evidences are highly doubtful and their evidence are not reliable and they simply stated that the appellant assaulted the deceased and all other witnesses namely PW. 3 to 5 and 8 are hearsay witnesses and the trial Court based on the basis of evidences adduced by P.W.1 and P.W.2 that too without any corroboration convicted the appellant . The prosecution failed to prove the arrest of the appellant and the recovery of the material objects and there is a nexus between the appellant and the material objects, however the trial court failed to consider the contradictory statement given by the PW.1 who is the son of the deceased and his wife PW. 2 and there are vital contradictions and the same affects the very root of the case of prosecution.

               4.2. The prosecution has projected the theory through P.W1 that the appellant demanded money from the deceased and their evidence is inconsistent and P.W.1 himself admitted in his cross examination that the deceased had no independent income and thereby the theory of prosecution that the appellant demanded money from the deceased is doubtful. As per the evidence of P.W.1 after the incident the village President /P.W.11 informed the police and immediately the respondent police rushed to the spot and started investigation and the same was also confirmed by the evidence of P.w.3 who is the neighbour but PW.1 gave complaint and investigation started prior to the complaint. Therefore the case of the prosecution is highly doubtful . P.W.1 cannot be the eye witness and he admitted in his cross examination that after hearing noise he came to the place of occurrence and thereby he could not have seen the occurrence. Therefore the appellant is entitled to benefit of doubt and the prosecution has failed to prove the charges levelled against the accused beyond all reasonable doubts and the trial Court ought to have acquitted the appellant by giving benefit of doubt, thereby the judgment of conviction and sentences are liable to be set aside.

5. The learned Additional Public Prosecutor would submit that the appellant is none other than the son of the deceased and the appellant demanded money from his mother and on the date of occurrence when the appellant demanded money from the deceased she refused to give money thereby he assaulted his mother with wooden stick and thereby she sustained injuries and immediately she was taken to lalgudi Government hospital and thereafter she was referred to Trichy Government Hospital where she died. P.W.1 gave complaint and based on the complaint the Sub Inspector of Police registered First Information Report and thereafter the Investigation Officer conducted investigation and as per the investigation prima facie materials are available and thereby he filed final report as against the appellant. P.W.1 and P.W.2 are the eye witness to the occurrence and they categorically deposed about the manner of occurrence. P.W.3 to P.W.8 though they are hearsay witnesses however they saw the deceased with injuries. PW.9 has deposed about the inquest PW. 10 has deposed about the sending the deceased to the hospital through auto. P.W.11 is the village president who after hearing the occurrence came to the occurrence spot and had seen the deceased with injuries and he arranged auto and also helped in sending the deceased to the hospital. P.W.10 has deposed about the preparation of observation mahazhar. P.W.12 is the doctor who initially treated the injured . PW.15 has deposed about the treatment given in the Government Hospital, Trichy P.W 20 has deposed about the registration of the First Information Report and the evidences of prosecution witnesses are cogent and reliable and thereby the trial Court after considering the evidence correctly convicted the appellant and there is no infirmity or illegality in the judgment passed by the trial Court and therefore the appeal is liable to be dismissed.

6. This Court heard both sides and perused the materials available on record.

7. The appellant has been charged for the offence under Section 302 of IPC. Now the point for determination in this appeal is whether the prosecution has proved the charges levelled as against the appellant .

8. In this case the deceased is none other than the mother of the appellant . According to the case of prosecution the appellant used to demand money from his mother/deceased Kalarani. While so, on the date of occurrence when the deceased was in her house, the appellant demanded money from her mother and when she refused to give money he assaulted her with stick and thereby she sustained injuries and she was taken to lalgudi hospital and thereafter referred to Government Hospital, Trichy, where she died.

9. In order to prove the case the prosecution has examined P.W. 1 to P.W.21 and marked exhibits Ex.P.1 to P.18 and material objects M.O.1 to M.O.4. In this case P.W.1 and 2 are the eye witnesses to the occurrence. P.W.1 is the son of the deceased and P.W.2 is the daughter-in-law of the deceased and wife of P.W.1 The P.W.1 who is eye witness to the occurrence has clearly deposed that in the year 2020 in the month of February the appellant stayed with her mother and he very often demanded money from her mother. While so, on 06.05.2020 when he along with wife went to the house of the deceased to give food to her, at the time at about 9.30 am., the appellant scolded her mother and assaulted with stick on the right head saying that will kill you and thereafter he ran away with stick. Immediately the neighbors came there and he along with his wife seen the deceased and immediately with the help of panchayat president /P.W.11 they had taken his mother to the lalgudi hospital where they referred her to Government Hospital, Trichy. In the Government Hospital Trichy the doctor reported that his mother died, and thereafter he lodged complaint and the said complaint has been marked as Ex.P.1 which reveals that on the date of occurrence the appellant assaulted the deceased with stick thereby she sustained injuries and therefore the evidence of P.W.1 has been corroborated by Ex.P.1 which is the first statement.

10. P.W.2 also in her evidence stated that on the date of occurrence on 06.05.2020 when she along with the wife of the deceased to give food at that time at about 9.30 a.m., the appellant scolded his mother by demanding money and for that the mother of the appellant refused to give money and immediately the appellant took a stick and assaulted his mother on her right ear and immediately blood was ousted. After hearing the noise, P.W.3 came there and thereafter the deceased was taken to hospital therefore the evidence of P.W.1 and 2 revealed that the appellant assaulted the deceased with stick. The evidence of P.W.1 and 2 has not been shaken through cross examination and their evidences were not discredited.

11. The other witness P.W.3 to P.W.8 are hearsay witnesses and P.W.9 has deposed about the inquest conducted by the investigation Officer. P.W. 10 had deposed about seeing the deceased with injuries and they also arranged auto and the deceased was taken to hospital through auto. P.W.12 is the mahazhar witness she also deposed about the preparation of observation mahazhar and rough sketch. P.W.13 had deposed about the recovery of material objects and P.W.14 who had given first aid to the deceased stated that on 06.05.2020 when he was on duty at Lalgudi hospital at about 10.10 a.m., PW.1 along with the deceased came there for treatment at that time he saw the injuries on the face and head of the deceased. The deceased was unconscious and she was referred to Trichy Government Hospital. He also gave certificate Ex.P.6.

12. On perusal of ExP.6 it reveals that the deceased was unconscious and she sustained injuries on her nose and head Further P.W.15 who admitted the deceased in the hospital at Trichy has deposed that on 06.05.2020 at about 12.00 pm. When he was on duty the deceased was brought by her son and she was unconscious and she could not respond the instructions. Pulse rate not pulpable and he was declared dead thereby the body was sent to post mortem. Ex.P.7 also reveals the same. P.W. 18 also doctor who conducted post mortem on the body of the deceased has deposed that he conducted autopsy on the body of the deceased and he found the following injuries on the body of the deceased:

               1. Reddish brown abraded contusion on right side of face and adjacent neck outer part 14x13x4cm; On examination right side of lower jaw bone fractured.

               2. Tear of right ear, 2x1cm; lower part, full thickness.

               3.Lacerated wound over the left fronto-temporo-parietal region, vertical 3.5x2cm; Bone deep; On dissection underlying scalp contused, 9x6x2cm; contusion of right temporal scalp; Skull; linear fracture from left temporal to right temporal runs along the midbase 20cm; merges with adjacent cranial sutures; Membranes: Diffuse subarachnoid hemorrhage, red colour present: Brain: Intact; C/s: Normal.

               4. Reddish brown abrasion over right arm outer part 3x2cm.

               External genital organs: Intact; Heart: Intact; C/s: Empty; Lungs: Intact, C/s: Pale; Larynx and Trachea: Diffuse contusion on right side of neck; Hyoid bone and Thyroid Cartilage: Intact; Stomach: Intact; C/s: contains 180ml of greed fluid, No peculiar smell; mucosa: normal; All other internal organs: Intact, C/s Pale; Bladder: Intact; Uterus: Intact; C/s: Empty; Intestines: Normal; Pelvis and Spinal column: Intact.

               No other ante-mortem injuries or abnormalities anywhere on the body.

               Blood in gauze sent for serology. Viscera preserved and sent to chemical analysis.

He also issued post mortem certificate. Ex.P.9 and also opined that the deceased would have appeared to have died due to head injury, significant blunt injury to the next noted.

13. PW 20 has deposed about the registration of the First Information Report based on the complaint given by P.W.1 and P.W. 21 has deposed about the fair investigation conducted and he also arrested the appellant and recovered the material objects through mahazhar witnesses and also deposed about the recovery of weapons. The weapon was also shown to the doctor and the doctor also suggested that there are possibility to cause injury on the body of the deceased with the said weapon. It is a case of eye witness and evidence of eye witness are natural , cogent and reliable and the evidence of P.W.1 and P.W.2 cannot be discarded in any way, thereby the prosecution has clearly established the case that the deceased died due to the assault made by the appellant.

14. The trial Court also after elaborate discussion and analysing the evidence adduced on both side convicted the appellant for the offence under Section 302 of IPC. Though the prosecution has proved that the appellant assaulted the deceased with stick and she died the said act of the appellant will come under Exception I of 300 of IPC, because there is no pre meditation and the appellant has not used any deadly weapons and he attacked with stick which was available near to the place of occurrence. Further considering the injuries sustained by the deceased and the evidence of witnesses shows that the appellant had given a blow to the deceased due to wordy quarrel between the appellant and the deceased thereby the act of the appellant will come under Exception I of Section 300 of IPC.

15. In the result, this criminal appeal is partly allowed and the judgment of conviction under Section 302 of IPC passed by the learned III Additional District and Sessions Judge, Tiruchirapalli in SC No.178 of 2021 dated 23.06.2022 is modified and the appellant is found guilty for the offence under section 304 (I) of IPC and he is convicted under Section 304 Part I of IPC and sentenced to undergo seven years rigorous imprisonment and to pay a fine of Rs.5,000/- and in default to undergo six months simple imprisonment. The period of sentence already undergone by the appellant shall be set off under Section 428 of Cr.P.C. as against the substantive sentence. The fine amount already paid for the offence under section 302 of IPC can be adjusted to the fine payable for the offence under section 304(i) of IPC. Bail bond if any executed by the appellant shall stand cancelled. The trial Court is directed to take steps to secure the appellant to undergo the remaining period of sentence.