R. Banumathi, J.
1. The Appellant is the Accused in S.C. No. 22/97 on the file of Additional Sessions Judge, Pondicherry at Karaikkal. Aggrieved over the Conviction under Sec. 308 Part II I.P.C and sentence of Rigorous Imprisonment of Three years imposed upon him, the Appellant has preferred this appeal.
2. The occurrence on 25.08.1995 arose in a strange situation. P.W.1-Muthukumaraswamy, P.W.2-Kumar and P.W.3-Mathavan are the employees under Rajeswari Lorry Service. On the fateful day-25.08.1995, P.Ws. 1 to 3 happened to be inside E.I.D. Parry Company, Thennangudy Village to unload the Iron Rods, which they transported in Lorry No. TSL-4243.
3. Prosecution case:- Case of Prosecution is that while they were unloading the Iron Rods, the Appellant/Accused came in a Van (which was on Contract of E.I.D. Parry Company) and parked infront of the Lorry. The Appellant/Accused questioned P.W.2 as to why he parked the Lorry in such a way preventing his vehicle from coming inside the Factory, which resulted in wordy altercation between them. Within few minutes, the Appellant/Accused came with M.O.1-Iron Pipe and hit on the backside Scalp of P.W.2 and ran away from the place. Injured P.W.2 became unconscious and fell down. P.W.3 informed the matter to P.W.4-the Security Officer of the Factory and brought him to the scene of occurrence. Then, P.W.4 engaged a Taxi and P.W.1 was taken to General Hospital, Karaikkal and admitted thereon.
4. Complaint and Registration of case:- P.W.1-Muthukumarasamy went to Thirunallar Police Station and preferred Ex.P.1-Complaint. On the basis of Ex.P.1, P.W.7-Head Constable registered a case in Crime No. 77/95 against the Appellant/Accused under Sec. 308 I.P.C under Ex.P.7-F.I.R.
5. Investigation:- P.W.8-Assistant Sub Inspector of Police had taken up the Investigation. He has prepared Ex.P.5-Observation Mahazar and Ex.P.8-Rough Sketch. One Dr. Kannan treated P.W.2 and issued Ex.P.4-Wound Certificate, noting the Scalp Injury 7 CM x 1 CM in Right Frontal Region. Since Dr. Kannan had gone abroad, P.W.5-Dr.Narashimamoorthy has testified to the contents in Ex.P.4-Wound Certificate.
6. The Appellant/Accused surrendered before the Police Station on 04.09.1995. He was arrested by P.W.9-Sub-Inspector and produced before the Judicial Magistrate, Karaikkal. After the receipt of the Chemical Examination Report and on completion of the formalities of the Investigation, the Appellant/Accused was charge-sheeted for the offence punishable under Sec. 308(II) I.P.C.
7. To bring home the guilt of the Appellant/Accused, the Prosecution has examined P.Ws. 1 to 10. Exs.P.1 to 12 are marked. M.Os.1 to 5 are produced before the Court. During his questioning under Sec. 313 Crl.P.C the Appellant/Accused denied the charge and pleaded that a false case is foisted against him. On the evidence of P.Ws.1 to 3, learned Sessions Judge found that the Appellant/Accused hit P.W.2 with M.O.1-Iron Pipe on the Head of P.W.2. In the circumstances of the case, learned Sessions Judge was of the view that the Appellant/Accused hit P.W.2 with intention or knowledge of causing the death. Finding that the Appellant/Accused inflicted such a heavy blow to P.W.2, who is stranger to the Appellant/Accused and observing that no leniency could be shown to the Appellant/Accused, the Trial Court convicted the Appellant/Accused under Sec. 308 Part II I.P.C and imposed Rigorous Imprisonment of Three years.
8. Assailing the Conviction and the findings of the Trial Court, the Appellant/Accused has preferred this Appeal. Onbehalf of the Appellant/Accused, it is contended that when P.W.2 is a stranger to the Appellant/Accused (Van Driver) and that the occurrence was without pre-meditation, the Appellant/Accused could not have intended to cause the death and hence, the Conviction under Sec. 308(II) I.P.C is not sustainable. It is submitted that in any event, in the circumstances and evidence forthcoming, the Conviction under Sec. 308(II) I.P.C is to be altered into the Conviction under Sec. 324 I.P.C.
9. Supporting the findings of the Trial Court, learned Additional Public Prosecutor (Pondicherry) has submitted that on the evidence and materials on record, the Sessions Court has rightly convicted the Appellant/Accused under Sec. 308(II) I.P.C and that there is no reason warranting interference in Conviction and Sentence of Imprisonment.
10. Facts and circumstances of which led to the occurrence are not much disputed. In their evidence, P.Ws.1 to 3 have consistently spoken about the overt act of the Appellant/Accused – that the Appellant/Accused hit P.W.2 with M.O.1-Iron Pipe. P.W.2 was a stranger to the Appellant/Accused. P.Ws. 1 to 3 are employed in Rajeswari Lorry Service. They only carried the goods to E.I.D. Parry Company. The Appellant/Accused being a stranger to P.Ws.1 to 3, they have no reason to make false accusation, who happened to see just on the date of occurrence-25.08.1995. The Trial Court, which had the opportunity of observing the Injured Witness-P.W.2 has accepted his version as cogent and trustworthy and there is no reason to take a different view.
11. The occurrence is amply corroborated by the seizure and other Material Objects during Investigation. M.O.1-Iron Pipe – measuring 75 CM was seized under Ex.P.6-Mahazar. Blood stained mud (M.O.4) and Blood stained Kakki Shirt (M.O.3) were also seized from the scene. Human blood was detected in all M.Os. 1, 3 and 4, which fortifies the Prosecution case.
12. Thus, the Appellant/Accused is proved to be responsible for causing injury to P.W.2 on the Scalp. The Injury sustained by P.W.2 is opined to be simple in nature. Under those circumstances, whether the Conviction under Sec. 308 Part II I.P.C could be sustained is the only short point, which is of prime consideration in this Appeal.
13. As noted earlier, the occurrence is not denied. P.Ws. 1 to 3 happened to be inside the premises by unloading the Iron Rods. The Appellant/Accused being a Van Driver, his van was under Contract of service of E.I.D. Parry Company. The Appellant/Accused caused the blow in a spur of the moment. There was no pre-plan or pre-meditation. Offence punishable under Sec. 308 postulates doing of an Act with such intention or knowledge and under such circumstances that if one by that act caused death, he would be guilty of culpable homicide not amounting to murder. An attempt of that nature may actually result in hurt or may not. It is the attempt to commit culpable homicide which is punishable under Sec. 308 whereas punishable for simple hurt can be meted out under Sec. 323 and 324 and for grievous hurt under Sections 325 and 326. In a sudden flash of anger, the Appellant/Accused hit the blow on the Head of P.W.2. Under those circumstances, it would be justifiable to alter the Conviction from Sec. 308 Part II I.P.C. to Conviction under Sec. 324 I.P.C.
14. Thus, partly allowing this appeal, the Conviction under Sec. 308 Part II I.P.C is altered into Conviction under Sec. 324 I.P.C. The Appellant/Accused was already in prison for 154 days :-
04.09.1995 to 07.11.1995 = 65 04.03.1997 to 17.06.1997 = 82 Sentence suspended on 24.06.1997 = 7 ----- 154 ----- Considering the simple nature of Injury and the manner of attack for the Conviction under Sec. 324 I.P.C. the sentence of Imprisonment could be modified as the period of sentence as already undergone and further imposing fine of Rs. 1000/-.
15. Therefore, the Conviction of the Appellant/ Accused in S.C. No. 22/97 under Sec. 308 Part II I.P.C is altered into Conviction under Sec. 324 I.P.C and this Appeal is partly allowed. For the Conviction under Sec. 324 I.P.C the Appellant/Accused is imposed the sentence of Imprisonment of 154 days, which he has already undergone and further a fine of Rs. 1000/- is imposed, in default to undergo Imprisonment for three months.
16. The Trial Court is directed to take appropriate steps for collecting the fine amount from the Appellant/Accused, in default of payment, secure the custody of the Appellant/Accused and make him to undergo Imprisonment for three months.