The main legal point established in the judgment is the determination of the nature of the offence committed by the accused under Section 304(i) of IPC.

JUDGMENT

(Prayer: Criminal Appeal has been filed under Section 374(2) of Cr.P.C., praying to set aside the order of conviction passed by the judgment in S.C.No.66 of 2012 passed by the Additional District and Sessions Court, Chengalpattu, by judgment dated 29.08.2019 and acquit the appellant/accused.)

1.This appeal is filed by the sole accused, who was found guilty of offence under Section 304(i) of IPC for causing death of 1 ½ years old child. While the accused attempted to stab one Pachaiammal, but accidentally, hit the child carried by the daughter of Pachaiammal, who tried to prevent the accused from stabbing Pachaiammal.

2. The case of the prosecution is as follows:-

 The accused Venkatesan was residing opposite to the house of the complainant. When the accused asked Pachaiammal to arrange a job, she has arranged for a helper job to the mason work in a construction site for daily wages of Rs.400/-. After 3 days, the accused was paid Rs.370/- per day after deducting Rs.30/- per day from his wages. The wage of the accused had deducted at the rate of Rs.30/- per day as a commission for Pachaiammal who arranged the job for him. Therefore, on 14.12.2010 at about 10 am the accused went to the house of the Pachaiammal, picked up quarrel and questioned, how she got the commission for arranging his job. When Pachaiammal denied receiving any commission, the accused took a pen knife and tried to stab Pachaiammal. On seeing this, Banumathi the daughter of Pachaiammal, who was carrying 1 ½ years old boy Vadivel Murugan, intervened and tried to stop the accused, the attack and aim fell on the child head caused cut injury. The child was taken to the Government Hospital, Chennai, but died. Initially, a case was registered for the offence under Section 302 of IPC in Crime No.1527 of 2010 on 15.12.2010. Later, in the course, it was found that the death occurred not due to the intentional to cause death of the 1 ½ years old child. Hence, the police altered the charge and filed the alteration report under Section 304 of IPC, instead of 302 of IPC.

3. On completion of investigation, final report was filed. The accused was served with papers under Section 207 of Cr.P.C and the case was committed to the Court of Sessions for trial. The trial Court framed charge under Section 304 (i) IPC and questioned the accused , who denied the charge and went for trial. To prove the prosecution case, 12 witnesses were examined and 16 exhibits were marked and also 4 material objects were marked. On completion of trial, the trial Court held the accused guilty of the offence under Section 304(i) of IPC and convicted him to undergo 10 years RI and fine of Rs.1000/- in default, to undergo one year RI. The period of imprisonment already undergone by the accused was ordered to be set of under Section 428 of Cr.P.C.

4. The accused being aggrieved by the conviction and sentence, has preferred this appeal on the ground that the witnesses to the prosecution are close relatives and interested witnesses and therefore, they are not reliable. The injury caused to the deceased boy probably would have been caused due to the accidental fall of the child on record and got hit by stones and bricks. The evidence of the eye witness regarding the stab injury does not tally with the post mortem report, which renders the evidence of the so-called eye witness is doubtful. In the absence of intention or knowledge to cause the death of minor boy, the trial Court ought not to have convicted the accused for the offence under Section 304 (i) of IPC since the ingredient required for the offence under Section 304 (i) IPC is not satisfied. When there is a reasonable doubt regarding the witnesses to the prosecution and the witnesses regarding the confession statement and recovery have not been supported by the independent witness, who turned hostile, the accused should have been extended the benefit of doubt.

5. Per contra, the learned Government Advocate (crl.side) appearing for the State submitted