Judgment :- Janarthanam, J. Of Accused 1 to 4 who faced trial for various offences in Sessions Case No.85 of 1981 on the file of Court of Session, Trichy, accused 1 and 4 were convicted and sentenced to imprisonment for life for the offence under Sec.302 read with Sec.34, I.P.C. While accused 2 and 3 were acquitted of all the offences in respect of which they stood charged, and accused 1 and 4 were acquitted in respect of other charges. Aggrieved by the conviction and sentence, accused 1 alone preferred appeal. While hearing the appeal, we entertained a doubt as respects the correctness of the finding given by the court below against accused 4, Therefore, suo motu revision is taken up on his behalf so as to see that no prejudice is caused to the cause of justice. 2. Accused 1 and 4 are the residents of Thavittupatti, within the jurisdiction of Thuraiyur police station. Accused 2 to 4 are the sons of accused 1. Palaniyandi (since deceased) and accused 1 are brothers. P.Ws.l and 2 are the sons of the deceased. The deceased and his sons, P.Ws.1 and 2, who were away at a Malaysia for quite sometime returned to India in the year 1970 once and for all with all their earnings they had in the foreign soil. Accused 1 demanded from the deceased a share in his earnings to which course, the deceased was not amenable. Due to this accused 1 also refused to give to the deceased share in the family properties Consequently, the deceased filed a suit in sub Court, Trichy for partition. Thereafter want of cordial relationship between the two families came to prevail. The civil proceedings got terminated in favour of the deceased in giving him l/3rd share in the lands and other properties of the family. 3. On 22.11.1960 at about 6 or 6-30 AM., the deceased P.Ws.l and 2 went to the lands taking with them the baling apparatus and their bulls for irrigating the lands P.Ws.3 and 4, neighbouring land owners likewise were available in their lands for the purpose of irrigating the fields. While the deceased and P.Ws.1 and 2 were making necessary arrangements for baling out water from the well, accused 1 to 4 emerged there and objected to the drawing of the water from the well. While the deceased and P.Ws.1 and 2 were making necessary arrangements for baling out water from the well, accused 1 to 4 emerged there and objected to the drawing of the water from the well. A wordy altercation arose between the accused on the one hand and the deceased and P. Ws.1 and 2 on the other. The wordy altercation led to a scuffle resulting in injuries being caused to the deceased, P.Ws.1 and 2 and accused 2 and 4. Accused ran away from there. 4. P.Ws.1and 2 and the deceased went to Thuraiyur Police station at 9 A.M. P.W.1 gave Ex.P1 complaint to P.W.15 the Sub Inspector of Police, who in turn registered the case in Crime No.425 of 1980 under Secs.324, 325 and 326, I.P.C P.W.15 referred the injured P.Ws.1 and 2 and the deceased to the Government Hospital, Thuraiyur for treatment. 5. P. W.12, the doctor attached to the Government Hospital at Thuraiyur treated the deceased for the injuries sustained by him and referred him to the Government Headquarters Hospital, Trichy for further treatment. Ex.P10 is the wound certificate. He also examined and treated P.Ws.1 and 2 for their injuries. Exs.P11 and P12 are respectively the wound certificates issued to P.Ws.1 and 2. 6. P.W.15 went to the scene at 10-30 AM. and prepared Ex.P3 observation Mahazar attested by P.W.6. He seized incriminating articles from the scene. He also drew a rough sketch Ex.P17 of the scene of occurrence. At 2-30 P.M., he received a message regarding the death of the deceased in the hospital. Immediately he altered the case into one under Sec.302,I.P.C. and sent express reports to the concerned officials. 7. P.W.16, Inspector of Police, on receipt of the express F.I.R. took up further investigation in the case. Between 5 and 7 P.M., he held inquest over the body of the deceased in the Government Hospital at Trichy. During inquest, he examined P.Ws.1, 3 and others. Ex.P18 is the inquest report. He despatched the body of the deceased through the constable P. W. 13 along with the requisition Ex.P6 for purpose of autopsy. He searched for the accused and they were absconding. 8. P.W.9, the doctor attached to the Government Headquarters Hospital, Trichy commenced autopsy over the body of the deceased at 12noon on 23.11.1980. Ex.P7 is the post-mortem certificate. He despatched the body of the deceased through the constable P. W. 13 along with the requisition Ex.P6 for purpose of autopsy. He searched for the accused and they were absconding. 8. P.W.9, the doctor attached to the Government Headquarters Hospital, Trichy commenced autopsy over the body of the deceased at 12noon on 23.11.1980. Ex.P7 is the post-mortem certificate. The doctor opined that injury Nos.1 and 4 could have been caused by a single blow with a stick like M.O.2; and that the incised injuries could have been caused by a sharp edged weapon like an aruval. He would further opine that the deceased would appear to have died of shock and hemorrhage due to injuries sustained by him about 20 to 26 hours prior to autopsy. 9. On 25.11.1980, P.W.16 arrested accused 2 and 4 at Kalingamudaiyampatti Road. Accused 2 gave a confessional statement, the admissible portion of which is Ex.P4. Accused 4 also gave a confession, the admissible portion of which is Ex.P19. Pursuant to the confession statement of accused 2 and 4, the weapons were recovered. On 27.11.1980, he arrested accused 1 near Sivankoil at Thavittupatti. Accused 1 also gave a confessional statement, the admissible portion of which is Ex.P20. Pursuant to the confession the weapon was received. He sent the incriminating articles through court to the Chemical Examiner for the purpose of analysis. Exs.P15 and P16 are the reports of the Chemical Examiner and Serologist respectively. 10. After completing the formalities of the investigation, P.W.16 laid a report under Sec.173, Cr.P.C. before Court on 28.2.1981 for the offences under Secs.302 read with 34, 324, 325 and 506, Part I, I.P.C. appeared to have been committed by the accused. 11. Upon committal, the learned Sessions Judge framed various charges against the accused as detailed below: Firstly, against accused 1 and 4 under Sec.302 read with Sec.34 I.P.C; Secondly, against accused 2 under Sec.324, I.P.C.; Thirdly, against accused 3 under Sec.325, I.P.C; Fourthly, against accused 3 under Scc.325, I.P.C; Fifthly, against accused 4 under Sec.352, I.P.C; Sixthly, against accused 1 under Sec.506(1), I.P.C, and Lastly against accused 4 under Sec.506(1), I.P.C. The accused when questioned as regards the charges framed against them, denied the same and claimed to be tried. 12. The prosecution in proof of the said charges examined P.Ws.1 to 16, filed Exs.P1 to P21 and marked M.Os.1 to 19. 13. 12. The prosecution in proof of the said charges examined P.Ws.1 to 16, filed Exs.P1 to P21 and marked M.Os.1 to 19. 13. The accused when questioned under Sec.313, Crl.P.C as regards the incriminating circumstances appearing in evidence against them, denied their complicity in the crime. They did not choose to examine any witness on their side. They however chose to mark Ex.D1. 14. The learned Sessions Judge, on perusal of the materials placed before him and after hearing the arguments of the learned counsel for the defence and the learned public prosecutor found accused 1 and 4 alone guilty under Sec.302 read with Sec.34, I.P.C, convicted and sentenced them to imprisonment for life while acquitting them and other accused (accused 2 and 3) in respect of the other charges. Hence the appeal and sua mom revision. 15. Learned counsel appearing for the appellant (accused 1) would submit that even assuming for argument’s sake that the evidence available on record in proof of the overt acts attributed to accused 1 is taken for granted to be true, his act by no stretch of imagination amounted to an offence under S.302, read with S.341,1.P.C. and if at all, his act in the circumstances of the case would amount to an offence under S.326,1.P.C. 16. The argument thus reflected above would imply that there is no dispute as regards the overt acts of the accused 1 in inflicting the injuries to the deceased. Accused 1 was said to be arming with an aruval M.O.4 at the time of occurrence. Despite possession of such lethal weapon, he did not opt to wield and use the same for inflicting injuries on the person of the deceased. He threw away. M.O.4 and seized M.O.2 wooden frame lying there and inflicted certain injuries on the deceased. His act of throwing the lethal weapon, an aruval and seizing a wooden frame readily available in the scene is indicative of his intention in not doing away with the deceased. His overt act in inflicting injuries on the deceased with the use of M.O.2 consists of his giving a hit on the left forehead besides his beating on the hip and thigh of the deceased. The evidence available on record in the shape of P.Ws.1 and 2 clinches the issue of the overt acts of accused 1 in this regard. 17. The evidence available on record in the shape of P.Ws.1 and 2 clinches the issue of the overt acts of accused 1 in this regard. 17. Perhaps the beating was not that much severe as to cause the resultant injury on the portion of the hip and thigh of the deceased and that was the reason why the medical testimony available on record in the shape of the evidence of the doctor P.W.9 did not disclose any injury on those portions of the body of the deceased. The doctor however found two contusions on the left eyebrow and eye lid and the other on the left frontal areas of the scalp. These two injuries are described in Ex. P.7. Post mortem certificate thus; “(1) A contusion on the left eye brow and eye lid 6 cm x 6 cm; (4) A contusion 4 cm x 4 cm. over the left frontal areas of the scalp.” The doctor would opine that these two injuries could have been caused by a single assault with a stick like M.O.2. Though he would not give any opinion as regards the nature of these injuries yet he would say that the cumulative effect of the injury Nos.3,4 and 6 is fatal. From this it is crystal clear that though those two injuries 1 and 4 are only confusions partaking the character of simple injuries, yet it cannot be stated that these two injuries are not endangering the life of the deceased. The weapon of offence, namely, M.O.2 wooden frame, though by appearance, appeared to be innocuous, is capable of being used as dangerous weapon likely to cause the death. In such circumstances, though it cannot be stated that in furtherance of common intention he did commit the murder of the deceased by intentionally causing his death by assaulting him with the wooden frame M.O.2,yet his act would squarely fall under Clause 8 of Sec.320,I.P.C., in the sense of causing hurt which endangered the life of the deceased punishable under Sec.326,I.P.C. 18. Comingto accused 4 (revision Petitioner), the evidence of P. Ws.1 and 2 would reveal that he was responsible for causing injury No.8 as described in Ex.P7, namely, “An incised injury 5 cm x 3 cm exposing bone over the lower third of posterior aspect of left leg near the ankle.” No doubt, this injury had been caused with M.O.5 aruval. Comingto accused 4 (revision Petitioner), the evidence of P. Ws.1 and 2 would reveal that he was responsible for causing injury No.8 as described in Ex.P7, namely, “An incised injury 5 cm x 3 cm exposing bone over the lower third of posterior aspect of left leg near the ankle.” No doubt, this injury had been caused with M.O.5 aruval. The doctor P.W.9 of course did not give any opinion regarding the nature of this injury. He would however give the features of the injury, on internal examination, which reveal the tendons nerves, cutting of blood vessels and exposing of left calcaneal bone. From the internal description given above, we can very well come to the conclusion that this injury is of grievous nature in the sense of falling under Clause 8 of Sec.320, I.P.C., endangering human life. In such circumstances, the overt act of accused 4 in causing this injury on the left leg near the ankle cannot be stated to be one done in furtherance of common intention of murdering the deceased by intentionally causing death by inflicting a cut with an aruval on the left ankle and if at all it may be stated that he had voluntarily caused grievous hurt meriting penal consequences for such action. 19. In view of the discussion as above, the conviction of accused 1 and 4 for the offence of murder in furtherance of common intention under Sec.302 read with Sec.34, I.P.C. and sentence of imprisonment for life imposed by the Court below deserve to be set aside and instead they are liable to be punished only for the offence under Sec.326, I.P.C. 20. Coming to the questing of sentence, accused 1 and 4 had been in prison on and from the date of their conviction, that is 18.10.1982. As such they have already undergone a sentence of imprisonment for more than six years four months. In the circumstance of the case, we feel that the ends of justice would be squarely met with by sentencing them to the period of imprisonment already undergone. 21. In the result, the conviction under Sec.302 read with Sec.34, I.P.C. and sentence of life imprisonment imposed on accused 1 and 4 by the course below are set aside and instead they are found guilty under Sec.326, I.P.C, convicted there under and sentenced to imprisonment to the period already undergone. 22. 21. In the result, the conviction under Sec.302 read with Sec.34, I.P.C. and sentence of life imprisonment imposed on accused 1 and 4 by the course below are set aside and instead they are found guilty under Sec.326, I.P.C, convicted there under and sentenced to imprisonment to the period already undergone. 22. Subject to the above modification, the appeal and revision are dismissed.