Judgment The first accused Palice alias Palace is the appellant in Crl.A.No. 317 of 1984 and his father-in-law Appalose alias Alphonse, the second accused is the appellant in Crl.A.No.316 of 1984. The first accused was tried for an offence under section 302, I.P.C. for having caused the death of one Sukumara Pillai, the paternal uncle of P.W.1 Surendrann with M.O. chopper at or about 7 p.m. on 6-7-1983 in front of the tea shop of P.W.2 Mani at Kadayalumoodu village, 6 kms. north of Arumanai police station, Vilavancode Taluk, Kanniyakumari District. The second accused was tried for an offence under section 109 read with section 302, I.P.C. for having abetted his son-in-law, the first accused, to commit the offence of murder in the course of the same transaction. The trial court found the first accused guilty of the offence under Section 304 Part I, I.P.C. and accordingly sentenced him to undergo rigorous improsenment for 10 years. The trial Court also found the second accused guilty of the offence under section 109 read with section 304, Part I, I.P.C. and sentenced him to undergo rigorous imprisonment for 6 years. 2. The case of the prosecution is this: The accused as well as the deceased belong to the same village. As stated earlier, the deceased is the paternal uncle of P.W.1 Surendran, a student. P.W.2 Mani is running a tea shop at the place of occurrence more fully described as No.3 in the rough sketch Exhibit P-20. South of the tea shop of P.W.2, P.W.3 Arulappan is having his grovcery shop. 3. On 6-7-1983 at or about 6.30 p.m. P.W.1 and his paternal uncle the deceased Sukumara Pillai were passing through the shops of P.Ws.3 and 2. The accused persons were standing near the house of Aareez, whose residence is shown as No.12 in the rough sketch Exhibit P-20. The deceased demanded the first accused, the sum of Rs.10 which the first accused promised to repay on 2-7-1983. This provoked the second accused, as a result the second accused who was armed with M.O.1 chopper, instigated the first accused to cut the deceased. The deceased demanded the first accused, the sum of Rs.10 which the first accused promised to repay on 2-7-1983. This provoked the second accused, as a result the second accused who was armed with M.O.1 chopper, instigated the first accused to cut the deceased. Immediately, the first accused snatched M.O.I from the second accused, and gave a cut on the left ear Of the deceased, as a result the deceased received an oblique incised wound 4"x 1" x bone deep accross the left side of his head, running from left cheek bone area cutting the ear into two halves and ending 2" behind and above ear edges of the regular wound. Once again, the first accused gave a cut on the left shoulder resulting in an oblique incised wound measuring 1" x 4" x 3/4" over the top of the left shoulder. The second accused fisted the deceased with his right hand on his back and right ear. The deceased fell down. The occurrence was witnessed not only by P.W.1, but also by P.Ws.2, 3 and others. Immediately, the accused persons left the place with M.O.1. Thereafter, P.W.1 went to his residence and informed his aunt about the occurrence and returned to place of occurrence and engaged a taxi belonging to P.W.4 Vincent. They carried the injured to Arumanai Police Station. They reached the Police Station at or about 8 p.m. Since the injured was unconscious, P.W.1 gave a statement which was reduced into writing by P.W.16, the Sub Inspector of Police, Arumanai Police Station. The statement given by P.W.1 is marked as Exhibit P-1. P.W.16 registered Exhibit P-1 as his Station Crime No.237 of 1983 under Sections 326,324 and 323, I.P.C. Exhibit P-19 is the printed First Information Report. He arranged to send the injured to the Government Hospital at Kuzhithurai since the doctor at Arumanai Government Hospital was on leave. He proceeded to investigate the case and reached the spot at 9.30 p.m. and prepared Exhibit P-3 observation mahazar. He also prepared Exhibit P-20 rough sketch and recovered the bloodstained earth marked as M.O.3 and the ordinary earth M.O.4 under Exhibit P-4 Mahazar attested by P.W.5 Alphonse and another. After examining the witnesses, he searched for the accused, but in vain. 4. In the meanwhile, P.W.1 reached the Government Hopistal at Kuzhithurai at 8.45 p.m. P.W.10 Dr. Damodaran examined the injured and noticed the following injuries: 1. After examining the witnesses, he searched for the accused, but in vain. 4. In the meanwhile, P.W.1 reached the Government Hopistal at Kuzhithurai at 8.45 p.m. P.W.10 Dr. Damodaran examined the injured and noticed the following injuries: 1. Oblique incised wound 4" x 1" x bone deep across cheek bone areacutting the ear into two halves and ending 2“behind the above ear, edges of thewound regular. 2. Incised wound oblique 1" x 4" x 3/4" “over the top of theshoulder.” He issued the wound certificate Exhibit P-8. Exhibit P-9 is the copy of the Accident Register. After giving first aid to the injured, he sent the injured to the Government Hospital, Nagercoil. P.W.11 Dr.Shanmugam examined the injured in the Government Headquarters Hospital, Nagercoil, at 11.25 p.m. and admitted him as an in-patient. However, the injured succumbed to his injuries at 1.15 a.m. on 7-7-1983. P.W.11 sent death intimation under Exhibit P-7 to Kottar Police Station. 5. P.W.7 the Head Constable attached to Kottar Police Station, on receipt of Exhibit P-7 death intimation, forwarded the same one Arumanai Police Station through P.C.724 (P.W.8) 6. P.W.16 the Sub Inspector of Police, on receipt of Exhibit P-7 death intimation at or about 7 a.m. on 7-7-1983, altered the crime under Section 302 I.P.C. and prepared express First Information Reports and sent the same to the concerned authorities. Exhibit P-18 is the copy of the express First Information Report. He immediately informed this to P.W.17 the Inspector of Police. 7. P.W.17 the Inspector of Police, on receipt of intimation from P.W.16 Sub Inspector of Police about the death of the injured, proceeded to investigate the case. He reached Nagercoil at 8.45 a.m. and conducted inquest over the dead body at the mortuary between 9.a.m. and 11 a.m. Exhibit P-21 is the inquest report. Thereafter, he handed over the dead body to P.C.1179 (P.W.9) along with Exhibit P-10 requisition for post mortem examination. Thereafter he visited the place of occurrence and examined P.W.2 and 3 and others. 8. Onreceipt of Exhibit P-10 requisition from P.W.17. P.W.12 Dr.Ponmudi attached to Government Headquarters Hospital, Nagercoil, conducted post mortem examination over the dead body at 3.35 p.m. on 7-7-1983. P.W.12 the following injuries. 1. There is a sutured wound 1/2" length present over the left shoulder. 2. 8. Onreceipt of Exhibit P-10 requisition from P.W.17. P.W.12 Dr.Ponmudi attached to Government Headquarters Hospital, Nagercoil, conducted post mortem examination over the dead body at 3.35 p.m. on 7-7-1983. P.W.12 the following injuries. 1. There is a sutured wound 1/2" length present over the left shoulder. 2. There is a sutured wound of 3 1/2" length present over the left side of head, extending from the left mastoid process to 1" in front of left ear. On removing the sutures, the first wound found to be muscle deep. The second wound has completely severed the left ear, in the middle upto the inner aspect (Authority canel). The left Zygomatic process was found cut 1/4" away from the skull. The left etyloid process was found cut. The left mastoid process was found cut completely. The imperticial temporal vessel is completely cut. The maxillary vessel and palerier auricular vessel were found cut. All branches of External carotoid artery). On removing the scalp, there is a linear fracture in the right temporal bone and the right Zygomatic process was found fractured. On opening the skull, there is extensive sub arachnoid haemorrhage over the right cereboral hemisphere. There is a haemotoma beneath the cerebellum (about 200 gms.) There is fracture in the middle crunial foss in continuously with the fracture in the temporal bone." According to P.W.12, the deceased would appear to have died due to haemorrhagic shock due to multiple injuries (facial and head injury) and the injuries found on the deceased are sufficient to cause death in the ordinary course of nature. ExP-11 is the post mortem certificate by P.W.12. 9. On 8-7-1983, P.W.17 examined P.W.4 Vincent, the taxi driver and also P.Ws.9 and 15. On 10-7-1983, P.W.17 arrested the first accused at or about 8.30 a.m. near Chittar Dam-2 in Kadayalumoodu. The first accused gave a statement in the presence of P.W.6 Joseph, the admissible portions of which are marked as Exhibit P-5. Thereafter, the first accused led P.W.17 and others to a place and produced M.O.1 from a bush and the same was recovered under the mahazar Exhibit P-6 in the presence P.W.6 and another. The second accused was also arrested on the very same day at or about 10.15 a.m. Since the second accused had some injuries in his nose and chest, he was sent for medical examination. P.W. 13 Dr. The second accused was also arrested on the very same day at or about 10.15 a.m. Since the second accused had some injuries in his nose and chest, he was sent for medical examination. P.W. 13 Dr. Krishnan attached to Arumanai Government Hospital examined the second accused and noticed the following injuries: "1. Irregular abrasions for a length of about 1 cm. on the left side of the nose with crust formation. 2. Abrasion 6cm. x 2cm. on the right side chest with crust formation." Exhibit P-13 is the copy of the Accident Register. On 11-7-1983, P.W.17 examined the doctors P.Ws.ll and 12. On 18-7-1983, he examined P.Ws.7 and 8. P.W.17 gave a requisition Exhibit P-14 to the Court to send M.Os.3 and 4 for chemical examination. 10. P.W.14, the Headclerk of the Judicial First Class Magistrate’s Court, Kuzhithurai, on receipt of Exhibit P-14 requisition, sent M.Os.3 and 4 for chemical analysis under the original of Exhibit P-15. He received Exhibit P-16 report from the Chemical Examiner and Exhibit P-17 from the Serologist. On 25-7-1983, P.W.17 examined the doctor P.W.10 on 2-8-1983 he examined the doctor P.W,13, who examined the second accused. After completing the investigation, P.W.17 laid the charge sheet on 11-8-1983 11. When questioned on the evidence appearing against him under section 313, Cr.P.C, the first accused stated that on 6-7-1983 he was standing in front of the betel shop owned by Rajaiyan marked M.O.14 in the rough sketch Exhibit P-20. At that time, his son-in-law Selvaraj came in a cycle and both of them fought with each other. At that time, his brother-in-law Chelliah as well as his father-in-law the second accused came there. Selvaraj and Chelliah beat the second accused. Thereafter, the first accused left the place. He was taken to the Police Station at 9 p.m. from his residence while he was taking his supper. The second accused has stated that on hearing noise, he went to the place of occurrence and saw that his son-in-law the first accused and Selvaraj were fighting with each other. At that time, the father of Selvaraj came and questiond the second accused as to why he had not intervened to separate the first accused and Selvaraj and so saying, he beat the second accused with a stick as a result he received injuries on his nose and on his chest. At that time, the father of Selvaraj came and questiond the second accused as to why he had not intervened to separate the first accused and Selvaraj and so saying, he beat the second accused with a stick as a result he received injuries on his nose and on his chest. Thereafter, he went to the nearby Out-post Police Station and was waiting for the Head Constable. At or about 7.30p.m. the deceased Sukumara Pillai and others came and gave a complaint that he was attacked at the arrack shop by unknown persons. The second accused and the deceased Sukumara Pillai were sent to the hospital at Arumanai. P.W.6 Joseph visited the hospital at Arumanai and informed the Police at Arumanai that the second accused should not be allowed to go. Thereafter, he was sent for medical examination. As such, he is innocent. 12. On a consideration of the oral and documentary evidence, the trial court came to the conclusion that the prosecution has not made out a case under Section 302,I.P.C. against the first accused as well as a case under section 109 read with section 302,I.P.C. aginst the second accused. But however, the trial court found the first accused guilty of the offence punishable under Section 304, part I, I.P.C and the second accused of the offence punishable under Section 109 read with section 304, Part I, I.P.C. and convicted and sentenced them as stated at the outset. 13. The question that arises for consideration in this appeal is, whether the prosecution has proved beyond reasonable doubt warranting the trial court to find the first accused guilty under section 304, Part I, I.P.C. and the second accused under section 109 read with section 304, Part I, I.P.C. 14. The learned counsel for the appellants contended that the case has been foisted against the accused/appellants leaving the real culprits to escape punishment and that the complaint given by the deceased to the police was suppressed and Exhibit P-1 has been created to implicate the accused persons who are very poor, with a view to give a quietus to the case. I am not impressed with the argument advanced by the learned counsel for the accused. In fact, the prosecution has proved beyod reasonable doubt the offence for which the appellants have been tried. I am not impressed with the argument advanced by the learned counsel for the accused. In fact, the prosecution has proved beyod reasonable doubt the offence for which the appellants have been tried. However, the trial court, without any evidence on record, came to the conclusion that the occurrence has taken place in a heat of passion. The evidence given by P.W.1, 2 and 3 have been totally accepted by the trial court. Having accepted their evidence in toto, I find the trial court erred in coming to the conclusion that the occurrence has taken place in a heat of passion without any basis. Unfortunately, the State has not filed any appeal as against the conviction and sentence awarded by the trial court. The doctor who conducted the post mortem has categorically stated that the injuries found on the deceased are sufficient to cause death in the ordinary course of nature. This aspect of the case has not been noticed by the trial court. The injury found on the second accused has been properly explained by P.W.1. Further both the appellants admit their presence at the scene of occurrence. There is nothing on record to infer that the prosecution is interested in leaving the real culprits to escape punishment and to foist a case on innocent persons. The contention put forth by the learned counsel for the appellants is without any basis. I do not see any reason to disbileve the evidence of P.Ws. 1 to 3. 15. In the result, I see no merit in the appeal and they are accordingly dismissed, confirming the Conviction and sentence awarded to the appellants/accused by the trial court.