The court modified the conviction from murder under Section 302 IPC to causing grievous hurt under Section 326 IPC, finding no intent to kill.

JUDGMENT :

1. This Criminal Appeal is filed against the conviction and sentence passed against the appellant/sole accused in the judgment dated 24.11.2020 passed by the I Additional District and Sessions Court, Thoothukudi, by convicting and sentencing the appellant for the offence punishable under Section 302 IPC and sentenced to undergo imprisonment for life and to pay a sum of Rs.2,000/- in default, to undergo three months simple imprisonment.

2. The appellant herein is the sole accused in S.C.No.330 of 2016. Based on the complaint given by one Muthuraj, examined as P.W. 1, the respondent police registered FIR in Crime No.142 of 2014 on 09.09.2014 at about 20.00 hours and took up the investigation. The complaint revealed that on 08.09.2014 at about 2.30 p.m, when the informant along with his brother Marisamy and wife of the deceased and few others were removing garbage in a tractor owned by Boopathy, the accused came and picked up quarrel with his brother Marisamy for engaging Boopathy with whom he has enmity. In the force of the quarrel, the accused took a wooden log from nearby and gave a single blow on Marisamy on his head. Marisamy was taken to the Vilathikulam Hospital and thereafter, Government Hospital at Thoothukudi. On 11.09.2014, at about 11.00 a.m Marisamy died. On intimation from the Thoothukudi Hospital, the police has come to know about the incident. However, only on receipt of the written complaint from P.W.1, FIR was registered and forwarded to the Judicial Magistrate and simultaneously, investigation was taken up. On the death of Marisamy, the charge was altered from Section 307 IPC to 302 IPC. Meanwhile, the accused surrendered before the Judicial Magistrate on 12.09.2014 knowing about that the Investigation Officer took the permission of the Court for police custody and the accused was taken into custody by the Investigation Officer on 17.09.2014. Based on the confession given by the accused, a wooden log and cloth were recovered under mahazar Ex.P.5 in the presence of Village Administrative Officer. On completion of the investigation, a final report was filed.

3. Based on the materials placed, the Sessions Court framed charge under Section 302 IPC and tried the accused.

4. To substantiate the charges, prosecution marshalled 17 witnesses, 21 exhibits and one material object. On the defence side, no document or oral evidence was let in.

5. The Trial Court after appreciating the evidence found that the occurrence was being witnessed by the brother of the deceased P.W.1 and wife of the deceased P.W.2. The wooden log used was recovered on the confession statement given by the accused. The postmortem report had disclosed that the deceased Marisamy has succumbed to death due to the injury sustained on the head, which caused complication. The blood sample collected from the wooden log -M.O.1 was sent to Laboratory and found that it contains human blood. Therefore, on cumulative assessment of these evidence, the accused was found guilty for the offence under Section 302 IPC and sentenced to undergo life imprisonment with fine of Rs.5,000/- in default three months simple imprisonment. The said findings of the Court below have been challenged in this appeal, on the ground that the trial Court has found that P.W.2 is not an eyewitness to the occurrence. Having held so, the evidence of P.W.1 who had deposed that he saw the occurrence along with P.W.2 also falls to the ground and ought to have been disbelieved. Contrarily, the trial Court had solely relied upon the evidence of P.W.1 to convict the accused without considering the improbability in the evidence of P.W.1 and contradictions found in the other prosecution witnesses.

6. The learned counsel would submit that though the case of the prosecution on the charge is that the accused hit the deceased with a wooden log repeatedly, the postmortem report indicates only one external injury near the eye.

7. The earliest document is the Accident Register maintained by the Vilathi