JUDGMENT
K.G. Balakrishnan, J.
1. The sole accused in Sessions Case No. 91 of 1991 on the file of Sessions Court, Palakkad is the appellant. He was tried by the Court of Sessions for having caused the death of his brother Unniyekkan. The finding of the Sessions Judge is challenged in this appeal.
2. Appellant-Kunhunni alias Chami and his deceased brother Unniyekkan are residing in a nearby compounds. Their mother Kunhi had availed a loan from the Government for construction of a house. On the date of the incident, the deceased Unniyekkan heard a sound from the appellant’s house and he knew that the appellant had been beating his wife. Deceased went to the house of the appellant probably to pacify the situation. According to prosecution, deceased had given two or three blows to the appellant with a stick. The deceased came to his residence and was sitting on the compound wall. According to the prosecution, the appellant came to that place and took out a spade and gave a fatal blow on the back of the head of the deceased. Deceased fell on the ground. P.W. 2, wife of deceased made a cry and the people in the locality came there and somebody informed P.W. 8 doctor. He came and examined the injured and found him to be dead.
3. P.W. 1 who is residing about 100 metres away from the place of incident came to the scene on hearing the hue and cry and saw the deceased lying injured on the ground. After about half an hour he went to Mannarkkad Police Station and gave Ext. P. 1 F.I. statement. P.W. 12, the Sub-Inspector of Police immediately visited the scene and arrested the accused at about 2.45 a.m. on the next day and he was sent for medical examination as the appellant had injuries on his body.
4. P.W. 13, took over the investigation and on 1-5-91 held inquest over the dead body. He also prepared scene Mahazar and recovered certain incriminating articles.
5. On the side of prosecution, 13 witnesses were examined and Exts. P 1 to P 10 were marked. The learned Sessions Judge relied on the evidence of P.Ws. 2 and 3, and found the appellant guilty of offence under Section 302, I.P.C.
6. The counsel for the appellant contended before us that the evidence of P.Ws. 2 and 3 cannot be believed and the investigation of the case was done in a manner which is prejudicial to the appellant. It is submitted that the investigating officer did not take note of several relevant materials which would throw light to the actual stage of things. The learned Public Prosecutor supported the conviction and sentence rendered by the Sessions Court.
7. P.W. 2 is none other than the wife of deceased Unniyekkan. She is not an eye-witness and she does not speak about the actual infliction of blow by the appellant to the deceased. But she gives the details of the entire circumstances leading to the incident. According to her, deceased Unniyekkan went to the appellant’s house on knowing that appellant was beating his wife. According to P.W. 2 deceased Unniyekkan was having a stick with him and she deposed that her husband has gone to beat the appellant. After some time deceased Unniyekkan came back and was sitting on the boundary wall of the compound. Deceassed Unniyekkan asked P.W. 2 to bring match stick, beedi, a shirt and dhothi from inside the house and P.W. 2 went inside to take these articles. Then she heard a sound of something being broken. When she came out she saw her husband lying injured. She understood that the appellant must have beaten her husband on his back with a spade. P.W. 2 appealed to the appellant not to beat but she was also threatened. Thereafter the parents of the deceased and others came to the place of occurrence.
8. P.W. 3 is another witness who speaks of the circumstances under which the incident happened. She is also not a direct eye-witness. When P.W. 3 came to the place of occurrence she saw her son lying injured. According to her, appellant was holding a spade. P.W. 3 and her husband got the spade from the hands of the accused. P.W. 3 also says that she had seen the accused holding a stone. The appellant when questioned gave an entirely different version. According to him, he was attacked by deceased Unniyekkan and in an attempt to save his life, he pushed down the deceased and according to him the deceased had fallen on a spade and substanied injuries.
9. From the evidence of P.Ws. 2 and 3 it is clear that the appellant was in a belligerent mood and he had caused the death of deceased Unniyekkan. The medical evidence adduced in this case shows that the deceased had sustained series of injuries and out of them injury Nos. 6, 7 and 8 were of serious nature. The skull bone was fractured and brain showed subdeural bleeding. P.W. 9, the doctor, was of the opinion that the deceased died of brain injury. So the evidence is clear that the appellant had inflicted a heavy blow on the head of Unniyekkan and as a result of that he died.
10. The counsel for the appellant contended that the entire incident happened as a result of the quarrel that ensued between the appellant the deceased, and that the appellant had no intention to cause the death of his brother and all these incidents happened as a result of the quarrel which was started by the deceased. The learned Public Prosecutor points out that the appellant had an intention to kill the deceased and even though he sustained injuries at the first part of the incident, he deliberately came to the house of the deceased and caused the fatal blow. It is also pointed out that the second part of the incident happened at a later stage and it cannot have any connection with the first part of the incident.
11. The evidence of P.Ws. 2 and 3 is to be examined in the light of the overall circumstances of the case. The deceased had gone to the house of the appellant and even according to prosecution, the appellant was beaten by the deceased. The appellant had sustained some injuries and he was treated in the hospital. It is true that the doctor who treated the appellant had deposed that those injuries are all minor injuries. After sustaining the injuries, the appellant came to the house of the deceased and he struck a blow on the head of the deceased. We do not think that there was sufficient time lag between the first and second incident. It could only be viewed as a part of the same incident though the two transactions happened at a distance of about 100 metres. There was quarrel between the deceased and the appellant and it was the deceased who had triggered the trouble at first. This is pointed out only to show that the appellant did not have any pre-meditation to cause the death of deceased. It must have happened all of a sudden. The learned Public Prosecutor points out that from the evidence of P.Ws. 2 and 3 it is evident that even after the infliction of the fatal blow on the deceased, the appellant stood near the body with a stone in his hand and threatened that he would hit the deceased with that stone. But this part of the version is not seen recorded by the police. P.W. 1 also speaks to this effect but he did not mention this fact in the F.I. statement. Even if, it is assumed that this fact is recorded, that would only show that he was in an enraged mood.
12. In a decision reported in Surinder Kumar v. Union Territory, Chandigarh, , the Supreme Court held that when an incident took place in a sudden quarrel in the heat of passion, Exception 4 to Section 300 would come into play and the offence that could be made out is only culpable homicide not amounting to murder. Those observations were made in a case where the deceased had a heated argument with the appellant and his brother with regard to the return of a kitchen which was given on rent. In the course of this heated exchange between them, one person is alleged to have showered filthy abuses. There was a threat that the utensils will be thrown out and the kitchen would be locked. The appellant then got enraged and entered the kitchen and returned with a knife and in the melee appellant inflicted three knife blows to the deceased, one on the elbow, other on the shoulder and the third on the chest. As a result, the deceased collapsed on the floor and later died on the way of hospital. In that background the Suprem Court held that the offence would come under Section 304, Part I, I.P.C.
13. In another decision reported in Sreedharan v. State of Kerala, , the Supreme Court held that there was sudden provocation and the entire incident happened in a heat of passion and the offence would come only under Section 304, Part I, I.P.C. That was a case where the deceased went to the house of the appellant on the day of Onam celebration while the appellant and his mother were taking food in the kitchen. The deceased asked the appellant to give food to him but appellant’s wife objected to the giving of food and asked the deceased to go out. Deceased became furious for not giving the food and he kicked the plate containing food served to the appellant and went out of the house to the road. The appellant came out with a dagger and followed him and caught him at about 81 feet away from the house and gave a blow with the dagger. It was held that, the offence would come under Section 304, Part I, as it was happened in a sudden fight in a heat of passion.
14. On a broad probability of the case, the entire incident might have happened in a single sequance. Deceased went to the house of the appellant and inflicted some blows on him. The appellant got enraged and came back and used a handy weapon and inflicted blows on the head of the deceased. The deceased is the brother and there is no case for the prosecution that there existed any enmity between the parties previous to this incident. Even according to P.W. 2, deceased was in a drunken state. From the facts disclosed by the prosecution, it could only be said that this unfortunate incident happened as a result of sudden quarrel between the brothers, and in the heat of passion, the appellant struck a blow on the head of the deceased causing his death. The offence would come under Part I of Section 304, I.P.C. Hence we alter the conviction and sentence of the appellant under Section 302, I.P.C. to one under Section 304, Part 1, I.P.C, and direct him to undergo rigorous imprisonment for eight years.
15. The criminal appeal is disposed of as above.