Judgment : ARUNACHALAM, J.: 1. The appellants who were A-1 to A-6, in S.C.No.6 of 1985, on the file of the court of Sessions, Coimbatore, were tried for having committed offences punishable under Secs.147, 341 and 302, I.P.C., on the allegation that at or about 5 p.m. on 21.4.1984 on the Dharapuram-Pollachi Road near a bridge they constituted themselves into an unlawful assembly, with the common object of causing the death of Maran after wrongfully restraining him and in pursuance of such object caused the death of Maran by hitting him with stones; kicking on his private parts and indiscriminately beating him with hands. 2. The learned trial Judge found the appellants guilty as charged. For the offence under Sec.147, I.P.C., the appellants were sentenced to undergo rigorous imprisonment for one year. For the offence under Sec.341, I.P.C they were sentenced to one month simple imprisonment. For the capital offence, they were awarded the lesser sentence of imprisonment for life. In this appeal, the appellants challenge the sustainability of the verdict of the trial court. The prosecution case will have to be narrated, for the disposal of this appeal. 3. Appellants 1 and 2 are brothers. Appellants 3 to 5 are brothers. The 6th appellant is the son of Junior paternal uncle of appellants 1 and 2. The appellants were residents of Sundara Goundanoor Village. Appellants 3 to 5 are the son of the aunt of appellants 1 and 2. P.W.1. Thirumal is the wife of the deceased. Maran; P.W. 2 Duraisamy is the son of the deceased and P.W.1. This couple had three other sons and a daughter Nachal. P.W.1 and the deceased had planned to give Nachal in marriage to Palani, son of Oovan. Kaliammal, wife of the third appellant, desired Nachal to marry the second appellant or in any event, become the bride of her younger brother. P.W.1 and the deceased were not agreeable to either of the suggestions of Kaliammal. P.W.1 and the deceased took a definite stand, that Kaliammal had no right to decide about the bride-groom to be selected for Nachal. Therefore, there was animosity between the appellants who are closely related and the family of the deceased. Ten days prior to the occurrence, the marriage between Nachal and Palani was celebrated. The appellants, who did not attend the said wedding, felt aggrieved and the animosity became more pronounced. 4. Therefore, there was animosity between the appellants who are closely related and the family of the deceased. Ten days prior to the occurrence, the marriage between Nachal and Palani was celebrated. The appellants, who did not attend the said wedding, felt aggrieved and the animosity became more pronounced. 4. P.Ws.1 and 2 and Maran were working as farm servants in the pannai of Kandimuthu Gounder, examined as P.W.4 for over twenty years. On Thursday, two days prior to the occurrence, deceased and P.W.1 requested P.W.4 for foodgrains. P.W.4 asked P.W.1 and the deceased to obtain cholam from P.W.5 as usual. P.W.4 directed, on Friday, P.W.5 to hand-over one bag of cholam to the deceased. The deceased, P.Ws.l and 2 went over to Poosaripatti on the evening of 21.4.1984 to obtain cholam from P.W.5. P.W.5 told that there was no stock of cholam and that the deceased could take it two days later. Therefore the deceased in the company of P.Ws.l and 2 was returning to his village Sundsra Goundanur from Poosaripatti. On the way home, at or about 5 p.m. on the Dharapuram-Pollachi Road, they found the appellants seated on a bridge near the well, from which water used to be taken for drinking purposes. When the deceased and others neared the appellants, appellants 1 and 3 wrongfully restrained the deceased questioning him as follows: The deceased replied that be would give his daughter in marriage, on his own volition to anybody he pleases and the appellants 1 and 3 had no right to question him. The first appellant immediately told the others. “TAMIL” So saying the first appellant beat on the lower abdomen of the deceased with a stone M.O.1. The second appellant beat on the back of the neck of the deceased with a stone M.O.2. The third appellant with another stone M.O.3 hit on the right flank of the deceased. On receipt of the injuries inflicted by appellants 1 and 2 and 3, the deceased fell down. When P. W.2 intervened, he was pushed by the appellants. The 5th appellant kicked on the private parts of the fallen down deceased. Appellants 4 and 6 beat with hands the deceased who was already lying on the ground. P.W.2 shouted for help. P.W.3 Arukkal @ Arukkani and her husband, heard the hue and cry raised by P.W.2 and came towards the scene. The 5th appellant kicked on the private parts of the fallen down deceased. Appellants 4 and 6 beat with hands the deceased who was already lying on the ground. P.W.2 shouted for help. P.W.3 Arukkal @ Arukkani and her husband, heard the hue and cry raised by P.W.2 and came towards the scene. On seeing them, appellants 1 to 6 made good their escape. P.W.3 hadwitnessed the entire occurrence. P.Ws.1 and 2 took the injured Maran in a bus to the Government hospital at Pollachi. Maran was admitted as an inpatient in the said hospital. At or about 7.45 p.m. P.W.6 Doctor Firdausi examined the injured Maran, brought by his wife, for injuries stated to have been sustained due to an assault by known persons with stones at 5 p.m. On 21.4.1984 at Sundara Goundanur, Maran complained of pain in the pubicarea. On examination P.W.6 found (1) abrasion front of right side of chest 1/2“x 1/2”; and 5. Diffuse swelling in left hand. No colour change was seen. Ex.P-2 is the copy of the Accident Register. P.W.6 sent Ex.P-3 intimation to the police. In the opinion of the Doctor, abrasion on the chest could have been caused by hitting with a stone. The diffuse swelling on the left wrist would be due to a fall on the ground or coming into contact with a rough surface or when a person rolls on the ground. Pain in the pubic area could have been caused by a kick on that location. P.W.14 Aaroon, head constable, Pollachi Town Police Station on receipt of Ex.P-3 made an entry in the general diary and thereafter proceeded to the government hospital, Pollachi. He questioned Maran and in the presence of the medical officer, P.W.6, recorded the statement of Maran, Ex.P-1 which is the first information report. P.W.6 had certified in Ex.P-1 that Maran was in the fit state to give the statement. Ex.P-1 was forwarded by P.W.14 to Nagamam Police Station, within whose jurisdiction the crime had been committed. P.W.15 Panicker, Sub Inspector of Police, Nagamam Police Station received Ex.P-1 and Ex.P-3 at 11.30 P.M. on 21.4.1984 and registered Ex.P-1 as Crime No.50 of 1984 under Secs.147, 341 and 323, I.P.C. He prepared the printed first information report Ex.P-17. He forwarded Ex.P-1 and Ex.P-17 to the Judicial II Class Magistrate, Pollachi. P.W.15 Panicker, Sub Inspector of Police, Nagamam Police Station received Ex.P-1 and Ex.P-3 at 11.30 P.M. on 21.4.1984 and registered Ex.P-1 as Crime No.50 of 1984 under Secs.147, 341 and 323, I.P.C. He prepared the printed first information report Ex.P-17. He forwarded Ex.P-1 and Ex.P-17 to the Judicial II Class Magistrate, Pollachi. He also forwarded a copy of the printed first information report to his superior officers, P.W.15 took up investigation and examined over again the injured Maran at the Government hospital. Ex.P-18 the statement then recorded under Sec.161, Crl.P.C. is now in the nature of a dying declaration. He proceeded to the scene of occurrence in the early hours of 22.4.1984 accompanied by P. W.2. At the scene he prepared the observation mahazar Ex.P-13, attested by P.W.11. He also prepared the scene sketch Ex.P-19 at or about 8.10 a.m. He seized M.Os.1 to3and 7 which are stones, pointed out by P. W.2 under mahazar Ex.P-14. Meanwhile, P.W.12 Doctor Zheer Ahamed, Examined the injured Maran at 7.30 a.m. on 22.4.1984. He found that Maran was complaining of pain in his lower abdomen. He had passed urine. His pulse was 96 per minute, volume and tension were good. Blood pressure was 100/60 mm. of mercury. Heart and lungs were normal. Abdomen was soft. There was no mass. The medical officer gave treatment for pain in the abdomen. Even on the next day, i.e., 23.4.1984 during his ward rounds, he examined Maran, who continued to complain of pain in his abdomen. The abdomen showed mild distension. Tenderness was present all over the abdomen. Though he directed X-ray being taken, that could not be done, since the Radiologist attached to the hospital was on leave. The victim did not abide by the advice of P.W.12 to proceed to the Government Medical College Hospital, Coimbatore for the purpose of being X-rayed. Further treatment was continued and P.W.12 found that the general condition was the same, though slightly disoriented. P.W.12 also felt that lower abdomen pain alone was not serious, but the pain associated with distension of abdomen and guardingwas a serious condition. Ex.P-15 is his findings. P.W.13 Doctor Navaneethan examined Maran at 1.20 a.m. on 23.4.1984. He found the general condition of the patient fair. He noticed tenderness over the right hypochondrium and epigastrium. Treatment was given. Again at 2.30 a.m. on a call he examined Maran. The patient was vomiting. Ex.P-15 is his findings. P.W.13 Doctor Navaneethan examined Maran at 1.20 a.m. on 23.4.1984. He found the general condition of the patient fair. He noticed tenderness over the right hypochondrium and epigastrium. Treatment was given. Again at 2.30 a.m. on a call he examined Maran. The patient was vomiting. He put him on rules tube aspiration. He reviewed the patient at 7.15 p.m. Even at that time, the victims general condition was fair. P.W.7 Doctor Syamala Devi examined Maran at 2.35 p.m. on 23.4.1984. Five minutes thereafter Maran died. P.W.7 forwarded the death intimation Ex.P-5 to the police. She has deposed that when she examined Maran, his condition was critical. 6. P.W.15 Sub Inspector Police, Panicker, on receipt of Ex.P-5 altered the crime to one under Sec.302, I.P.C. and prepared the express first information report, Ex.P-20, which he forwarded to his higher officers and Court. He also informed over VHE the Inspector of Police, Palanisamy, examined as P.W.16. 7. P. W. 16, took up investigation and proceeded to the hospital. At the mortuary, between 8 p.m. and 11.45 p.m. on 23.4.1984 he conducted inquest on the corpse of Maran. During inquest, he examined P.Ws.l to 3. Ex.P-21 is the inquest report. After inquest, he forwarded the dead body through police Constable P.W.9 accompanied by a requisition Ex.P-6 to P. W.8 Doctor Balachandra Perumal for the conduct of post-mortem. P. W.8 Doctor Balachandra Perumal conducted autopsy on the dead body of Maran at 8 a.m. on 24.4.1984 and found the following injuries. “1. Skin Abrasion right side of chest close to epigastrium 2 cm. × 2 cm. 2.Contusion back of left hand below wrist joint 8 cm. × 5 cm. Eye-lides closed. Tongue inside oral cavity. Teeth complete. Abdomen distended. On opening of abdomen, turbid fluid about one litre was present Heart filled with clotted blood. Lungs congested. Hyold bone was in tact. Liver congested. Spleen congested. Kidneys congested. Intestines distended. Distal illeum perforation 1 cm. adjacent loops of intestines inflamed coated with fibrous flakes. Pelvis, brain, spinal column normal.” In the opinion of the Doctor the deceased would appear to have died of shock and septicaemia, peritonites due to perforation of illeum, as a consequence of blunt injury to the abdomen. Ex.P-7 is the post-mortem certificate. Kidneys congested. Intestines distended. Distal illeum perforation 1 cm. adjacent loops of intestines inflamed coated with fibrous flakes. Pelvis, brain, spinal column normal.” In the opinion of the Doctor the deceased would appear to have died of shock and septicaemia, peritonites due to perforation of illeum, as a consequence of blunt injury to the abdomen. Ex.P-7 is the post-mortem certificate. Perforation in intestine could be the result of a kick on the pubic region; Injury on the pubic region was sufficient to cause death in the ordinary course of nature. P.W.16 forwarded the material objects seized during investigation, through court, to the laboratory analysis. Exs.P-11 and P-12 are reports of the Chemical Analyst and Serologist respectively. 8. On 4.5.1984, P.W.16 seized the case sheet Ex.P-15 from the Government hospital, Pollachi. After completion of investigation, he filed the final report against the appellants before the committal court on 6.7.1984. 9. When the appellants were questioned under Sec.313, Crl.P.C. by the learned trial Judge, to explain the incriminating circumstances appearing against them in evidence, they chose to deny their complicity in the crime. They went on to add that they had attended the marriage between Nachal and Palani. One Subramaniam of Vadukupalayam Village, a busy body was always interested in creating problems against persons whom he did not like and at his instance, this prosecution had been falsely launched, with an ulterior motive. 10. The trial Judge dealt with the appellants in the manner indicated in the earlier part of this judgment. 11. Mr.K.M.Santhanagopalan, learned counsel appearing on behalf of the appellants contended, that the third charge had been framed simpliciter for an offence under Sec.302, I.P.C. though overt acts had been attribute. 1 to all the appellants in respect of the deceased. He pointed out that the trial court must have framed a charge either with the aid of Sec.149, I.P.C. or Sec.34, I.P.C. On the inherent factual merits, he contended, that the motive alleged was too trivial to lead to this grave crime. He submitted that P.Ws.1 and 2 could not have been present at the scene and probably the deceased, who had gone out as usual for his drinking bout, had sustained the injuries found on him, at a different place in an altogether different pattern. He submitted that P.Ws.1 and 2 could not have been present at the scene and probably the deceased, who had gone out as usual for his drinking bout, had sustained the injuries found on him, at a different place in an altogether different pattern. He specifically brought to our notice the medical evidence, brought on record through several Doctors, to contend that the cause of death had not been connected with the overt acts attributed to appellants even if the role of the appellants as alleged by the prosecution were to be accepted we have carefully considered these submissions after hearing Mrs.Kalai Selvi, learned Government Advocate, representing the Additional Public Prosecutor. 12. This is not one of those usual cases where the occurrence had taken place due to deep-seated animosity or an yearning to kill the deceased. The facts narrated above show that it was an unexpected meeting between the deceased and the appellants. We are not prepared to accept the argument of the learned counsel for the appellants, that Kaliammal the wife of the third appellant, had not sought the hand of Nachal in marriage either for her brother or the second appellant. However, in view of the definite prosecution case, that ten days prior to the occurrence the marriage of Nachal had been celebrated, naturally passions must have come down, since the possibility of marriage either of Vellingiri or the brother of Kaliammal with Nachal could no longer survive. Even though there could not have been any deep-seated animosity on this score, the grievance ought to have continued and such grievance became volatile, when the appellants had noticed the deceased near the bridge in the company of P. Ws.l and 2. That the appellants did not have any mens rea to kill the deceased is fairly apparent, from the contents of Ex.P-1. All the appellants, on seeing the prosecution group, are stated to have proclaimed as hereunder. “TAMIL” These words clearly show that the appellants wanted only to thrash Maran, to exhibit their displeasure in his having not acceded to their request to take Nachal as a daughter-in-law in their family. The way in which the appellants have attacked Maran, without leaving any trace of a serious injury will also show, that in anger they had just beaten Maran, who happened to cross the place where they were seated. The way in which the appellants have attacked Maran, without leaving any trace of a serious injury will also show, that in anger they had just beaten Maran, who happened to cross the place where they were seated. Though prior to the commencement of the occurrence the accused had not constituted themselves into an unlawful assembly, it is clear that during the course of the incident, they had formed themselves into an unlawful assembly, the common object being to thrash the deceased. 13. P.W.6 Doctor Firdausi, who saw the injured Maran for the first time, did not find any external injury on the pubic area of Maran, though the latter complained of pain. All that the Doctor had noticed was an abrasion on the right side of the chest and diffused swelling on the left hand. The Doctor did not notice any correlation, to an attack alleged to have been indulged on the victim by the second and third appellants. There were also no injuries, which could connect the 4th and 6th appellants, who were slated to have indiscriminately beaten the fallen down victim. Such pack of injuries will only show, that the aim of the appellants was to teach a lesson to Maran, rather than causing him serious harm. We are unable to hold, that P. Ws.l and 2 could not have been present at the scene, for soon after the incident, P. Ws. 1 and 2 had taken the injured Maran to the Government Hospital by bus. They had reached the hospital within 21/2 hours. The evidence of P.Ws.1 and 2, further fits in with Ex.P-1, the complaint recorded from Maran himself, by P.W.14, the Head Constable of Pollachi Town Police Station. The presence of P.Ws.1 and 2 and the motive which led to this occurrence finds place in this earliest document. As stated earlier, when there was no deep seated animosity between the prosecution party and the accused, it would be rather odd for the victim Maran to implicate all the 6 persons in this occurrence, unless they had participated. On the totality of evidence, we are impelled to hold that in fact the occurrence had taken place as alleged by the prosecution of the afternoon of 21.4.1984. When the appellants had either beaten the victim or kicked him. 14. On the totality of evidence, we are impelled to hold that in fact the occurrence had taken place as alleged by the prosecution of the afternoon of 21.4.1984. When the appellants had either beaten the victim or kicked him. 14. While arriving at this conclusion, we have taken note of the evidence of P.W.3 another ocular witness whose presence at the scene appears to be quite natural. She was returning along with her husband from Poosaripatti. It is on the way, that she had seen the attack on the deceased by the appellants. We have carefully scanned her evidence and we are satisfied that the fabric of the prosecution, gets further affirmed by her version. 15. Having arrived at the conclusion that the appellants had attacked the victim, the next question which deserves scrutiny is the nature of offence committed by the appellants. We have already noticed the averments found in Ex.P-1, the first information reports Medical evidence certainly rules out the cause of death, being related, to the overt acts attributed to the appellants. P.W.6 when cross examined has stated, that when he examined the victim on 21.4.1984 at 7.45 p.m., he did not feel that there was any danger to him and that so long as the injured was in his charge, there was no symptom endangering his life. The Doctor would even add that no condition existed warranting an X-ray being taken. He did not even find anything in the pubic area sufficient to endanger the life of the injured. He felt that no further examination and treatment, than he had suggested was necessary. The injured did not even complain to him of any difficulty in passing urine. The cause of death itself is due to performation of illeum, shock and septicaemia. Septicaemia, according to P. W.6 was a toxic manifestation consequent to bacterial infection. P.W.6 did not notice any symptom of Septicaemia at the time of his examination. Septicaemia, according to him, can be developed from 24 hours to 48 hours. Septicaemia was a clinical condition caused by a living bacterial or virus infection. He did not even think it necessary to suggest for culture of blood, since there was no manifestation of septicaemia. P.W.12 Doctor Zheer Ahamed, who treated the victim on 22nd and 23rd April, 1984 had specifically deposed, that perforation can be caused by external cause or by internal causes without injury. He did not even think it necessary to suggest for culture of blood, since there was no manifestation of septicaemia. P.W.12 Doctor Zheer Ahamed, who treated the victim on 22nd and 23rd April, 1984 had specifically deposed, that perforation can be caused by external cause or by internal causes without injury. He also did not suspect septicaemia during his course of treatment. He would further affirm that the injection given by him to the patient would normally take care of septicaemia as well Even P.W.12 did not expect, that the victim would collapse soon. He has also categorically stated, that stomach perforation was caused in case of persons, who consumed alcohol. 16. P.W.13 Doctor Navaneethan, who had seen Maranat 1.20 a.m. and 2.30 a.m. on 23.4.1984, had also stated that the general condition of the patient was fair. All these Doctors have in unison stated, that proper treatment for perforation was surgery. It prima facie looks, that due to the absence of Radiologist, proper treatment had not been provided to the injured Maran. All these Medical Officers further agree that by surgery, Maran could have been saved. 17. The evidence of Doctor Balachandra Perumal, who conducted autopsy, also probabilises perforation by a fall, if that part of the body had come into contact with rough surface. He would give another cause for perforation, due to ulceration, though he has stated that perforation in intestine was possible due to a kick in the pubic region, and the injury in the pubic region was sufficient in the ordinary course of nature to cause death. On the totality of the medical evidence, we are unable to attach any special importance to this statement. From the commencement of treatment to the victim, no injury on the public region was noticed by any of the Doctors. When there are several causes for the perforat on of the illeum, it will be difficult to hold that it was as a result of the alleged kicking of the 5th appellant on the pubic region. We are unable to overlook in this context the admissions of P.Ws.1 and 2 that the deceased was in the habit of consuming alcohol. Alcohol was not available in the village and so the deceased used to go away to Poosaripatti to have his drinking about. We are unable to overlook in this context the admissions of P.Ws.1 and 2 that the deceased was in the habit of consuming alcohol. Alcohol was not available in the village and so the deceased used to go away to Poosaripatti to have his drinking about. We are unable to exclude that perforation of illeum could have been due to his being addicted to alcohol, or any of the other causes. 18. Having come thus far, naturally we have to exclude murder having been committed by these appellants. We are even unable to hold that any of the appellants would be liable for culpable homicide not amounting to murder. On facts charge simpliciter for murder, has not caused any prejudice to the case of the appellants. In any event the view taken by us now, would put an end to any further discussion on this, question. To reiterate, at an unexpected meeting between the deceased and the appellants, out of simmering grievance on a petty matter, the deceased had been thrashed. It may be, that stones were used but the fact remains, that the appellants had indulged in beating with hands and kicking. If stones had in fact been used, they should have left some marks on victim. Since we accept the prosecution case, that appellants 1 to 3 had attacked the victim with stones, while the others beat with hands or kicked, we hold that the offence committed by appellants 1 to 3, would be punishable under Sec.324 I.P.C. and that by the other appellants would be punishable under Sec.323, I.P.C. We set aside the convictions of all the appellants under Sec.302, I.P.C. and instead convict them under Secs.324 and 323, I.P.C. as aforestated. The convictions recorded under Sees. 147 and 341, I.P.C., shall stand confirmed. 19. As for the sentence to be imposed on the appellants for the offence, for which they have been convicted, we hold that it would be unnecessary to send them back to Jail. It appears that the first appellant has spent over three years and 7 months in jail, while the 5th appellant was incarcerated for over four months. The rest of the appellants had tasted prison life for over two months. It appears that the first appellant has spent over three years and 7 months in jail, while the 5th appellant was incarcerated for over four months. The rest of the appellants had tasted prison life for over two months. We are satisfied that the interests of justice would be met by restricting the sentences already imposed on the appellants and to be imposed on the modified conviction to the periods already undergone by them. 20. This appeal is allowed in part in the manner indicated above.