Judgment :- K.M. NATARAJAN, J. ( 1 ) ACCUSED 1 to 3 in S. C. No. 21 of 1985 on the file of the Principal Sessions Judge, tiruchirappalli, have preferred this appeal challenging the legality and correctness of the conviction and sentence imposed on each of them. Accused 1 to 3 were convicted under Sec. 302 read with Sec. 34, IPC and sentenced to imprisonment for life. In addition, the first accused was convicted under sec. 326,i. P. C. and sentenced to two years rigorous imprisonment and under sec. 324,i. P. C. and sentenced to six months rigorous imprisonment. The second accused was convicted under Sec. 307,i. P. C. and sentenced to undergo R. I for three years; and convicted under Sec. 324,i. P. C. and sentenced to undergo six months rigorous imprisonment. The third accused was convicted under sec. 323,i. P. C. and sentenced to three months rigorous imprisonment. The sentences were directed to run concurrently. The appellants were tried for the above offences under six charges on the allegation that on 27-9-1984 at about 830 p. m. at Pullampadi village, within the jurisdiction of Kallakudi Police station the first accused stabbed witness Chidambaram (since deceased) on the left flank with a spear and also stabbed P. W. 2 Natesan on the left forehead with the spear while the second accused stabbed witness Chidambaram on the left flank with button knife and also stabbed P. W. 1 Rajendran near the left side forehead and on the back, thrice. During the course of the same transaction the second accused stabbed the deceased Challakannu on the middle of the foreheard with button knife while the third accused cut him with a space on the left shoulder and the first accused was present then with spear. The third accused also beat P. W. 3 Lakshmi on the left hand with a stick and caused a simple injury. To substantiate the above charges, the prosecution examined p. Ws. 1 to 13, filed Exs. P. l to P. 24 and marked M. Os. l to 26. ( 2 ) THE case of the prosecution as disclosed from the oral and documentary evidence in short is as follows: The second accused is the son of the first accused. The third accused is the elder brothers son of the first accused. P. Ws. 1 and 3 are the son and daughter of the deceased Chellakannu. l to 26. ( 2 ) THE case of the prosecution as disclosed from the oral and documentary evidence in short is as follows: The second accused is the son of the first accused. The third accused is the elder brothers son of the first accused. P. Ws. 1 and 3 are the son and daughter of the deceased Chellakannu. P. W. 2 is the junior paternal uncle of P. Ws. 1 and 3. The accused and P. Ws. 1 and 3 are neighbours and in respect of the usage of the lane in between the two houses, there was enmity between the two families. ( 3 ) ON the day of occurrence at about 8. 30 p. m. P. W. 1, his mother deceased chellakannu, step-mother Pappu (not examined) and one Malarkodi were sitting and conversing in front of their house. P. W. 2 and his brother, witness chidambaram (since deceased) were inside their house. At that time, the first accused abused them in filthy language. On hearing the same, the deceased witness Chidambaram along with P. W. 2 came outside their house and questioned the first accused as to why he was abusing them in such a way. On hearing the same, the first accused entered into his house and brought a kuthukol (spear) M. O. 1 and stabbed Chidambaram with it on the left flank once. Immediately the second accused stabbed him with a button knife on the left flank once. On account of the stab given by the first accused the intesthe came out. On seeing the same, the deceased raised a hue and cry and went near the deceased-witness Chidambaram. At that time the third accused cut her with a spade on the right shoulder, which he has taken from nearby his house. The second accused stabbed her with button knife on the forehead. Thereupon, chellakannu, mother of P. W. 1, fell down unconscious. When P. W. 2 tried to intervene, the first accused stabbed him on the forehead above the left eye with m. O. 1. Similarly when P. W. 1 raised a hue and cry and went near his mother, the second accused stabbed Mm with button knife on the left side of the forehead and also on the back, thrice, and also on the left hand, once. P. W. 1 fell down unconscious. Similarly when P. W. 1 raised a hue and cry and went near his mother, the second accused stabbed Mm with button knife on the left side of the forehead and also on the back, thrice, and also on the left hand, once. P. W. 1 fell down unconscious. P. W. 3 who was engaged inside the house came out on hearing the noise and when she went near the injured Chellakannu and chidambaram, the third accused beat her on the left hand with casuarina stick. While A-1 stabbed her on the right shoulder with M. O. 1. On receipt of the injury, she fell down unconscious. The injured Chellakannu died on the spot as a result of the injury sustained by her. P. Ws. 4 and 5 witnessed the occurrence. One Ponnuswami brought a taxi and took the injured P. Ws. 1 to 3 to the government Hospital, Thiruchirappali. ( 4 ) P. W. 8, Civil Assistant Surgeon attached to the Government Headquarters hospital, Thiruchirappali, examined P. W. 1 for certain injuries said to have been caused on 27-9-1984 at about 8. 30 p. m. and to be due to assault with knife. He found the following injuries on P. W. 1. 1. A stab injury 1" * 1/3" bone deep on the left side temporal region. 2. An incised would " x 1/4" x 1/4" on the left deltoid region. 3. Stab injury 3/4 x 1/3" bone depth in the left scapular region. 4. A stab injury 1 x 1/2" x muscledeep on left inter-scapular region. ( 5 ) A stab injury 1/2" x 1/4" x 1/4" on the inter scapular region corresponding to the spinal area. He was of the opinion that injuries 1 to 5 are simple in nature and they could have been caused at the time and in the manner alleged by him. Ex. P. 13 is the wound certificate issued by him. 5. On the same day (27-9-1984) P. W. 8 examined witness Chidambaram (since deceased) at 11. 45 p. m. for certain injuries said to have been caused on the same day at 8. 30 p. m. and to be due to assault with Kuthukole. He found on him the following injuries:1. A stab injury on the left flank laterally about 3" of small bowel protruding through the wound. 2. 45 p. m. for certain injuries said to have been caused on the same day at 8. 30 p. m. and to be due to assault with Kuthukole. He found on him the following injuries:1. A stab injury on the left flank laterally about 3" of small bowel protruding through the wound. 2. A stab injury on the left side of the chest below the level of nipple in the anterior auxiliary line " x 1/4" x depth not probed, and air leak present. 3. An incised wound " x 1/4" x 1/4" left side back of the neck. Laparactomy was done closure by jejunal perforation corresponding to wound no. 2. Hemothorax left side intercostal drainage done. He was of the opinion that injuries 1 and 2 are grievous in nature and injury No. 3 is simple in nature. Injuries 1 and 2 could have been caused at the time and in the manner alleged. Ex. P. 14 is the wound certificate issued by him. ( 6 ) AT about 00. 10 a. m. on 28-9-1984 P. W. 8 examined P. W. 2 for certain injuries said to have been caused on 27-9-1984 at about 8. 30 p. m. , and to be due to assualt by Kuthukole. He found the following injuries:1. A stab injury " x 1/4"bone deep on the left side forehead. "above the eye brow. 2. A lacerated wound 1/4" x 1/8" x l/8" on the left side forehead 1/4" on the medial to wound No. 1. He was of the opinion that injuries 1 and 2 are simple in nature and could have been caused at the time and in the manner alleged. Ex. P. 15 is the wound certificate. ( 7 ) ON 28-9-1984 at 00. 15 a. m. P. W. 8 examined Lakshmi (P. W. 3) for certain injuries said to have been caused on 27-9-1984 at 8. 30 p. m. and to be due to assault by Kuthukole and thadikuchi. He found on him the following injuries:1. An oblique stab injury on the right shoulder 2" * 1" x 1"-2. A diffuse contusion " in diameter on the dorsum of the left index finger. P. W. 8 opined that the above injuries could have been caused at the time and in the manner alleged. Ex. P. 16 is the wound certificate issued by him. An oblique stab injury on the right shoulder 2" * 1" x 1"-2. A diffuse contusion " in diameter on the dorsum of the left index finger. P. W. 8 opined that the above injuries could have been caused at the time and in the manner alleged. Ex. P. 16 is the wound certificate issued by him. P. W. 8 sent intimation to the police and a requisition to the Magistrate for recording dying declaration of P. W. 1. ( 8 ) P. W. 12, Head constable attached to Kallakudi Police Station, got intimation from the Government he adquarters Hospital at 12. 30 a. m. on 28-9-1984 through v. H. P. He reached the Government Headquarters Hospital at about 2. 45 a. m. and examined P. W. 1 who was admitted as an in patient in the hospital. He obtained the statement Ex. P. 1, read over the same and obtained his signature therein the presence of the Medical Officer who certified that the patient was conscious throughout the period when he was examined. Thereafter he returned to kallakudi Police Station at 4 a. m. and on the basis of Ex. P. 1, he registered a case in Crime No. 152 of 1984 under Secs. 302,307- and 324,i. P. C. He prepared express first information reports and sent them to the higher officials and to Court. He informed the Inspector of Police, P. W. 13 about registering of the case. ( 9 ) P. W. 13 on receipt of information from P. W. 12 at about 5 a. m. reached the scene place at 5. 45 a. m. He inspected the scene place, prepared the observation mahazar Ex. P. 2 and drew the rough sketch Ex. P. 23. He held inquest on the dead body of Chellakannu between 6 a. m. and 10 a. m. and during the inquest, he examined P. Ws. 4 and 5 and others. Ex. P. 24 is the Inquest report prepared by him. After completing the inquest he entrusted the dead body with P. W. 10 constable, along with the requisition Ex. P. 17 to the Medical Officer to conduct post-mortem examination. He continued investigation and seized M. Os. 5 to 7 atabout 10. 15 a. m. under cover of mahazar Ex. P. 3. Atabout 11. 00a. m. he seized m. Os. 8 and 9 on being produced by one Savitri, under Ex. P. 17 to the Medical Officer to conduct post-mortem examination. He continued investigation and seized M. Os. 5 to 7 atabout 10. 15 a. m. under cover of mahazar Ex. P. 3. Atabout 11. 00a. m. he seized m. Os. 8 and 9 on being produced by one Savitri, under Ex. P. 4, at 11. 30 a. m. he seized M. O. 10 under mahazar Ex. P. 5 on being produced by P. W. 4. P. W. 6 attested Exs. P. 2 and P. 5 mahazars. ( 10 ) P. W. 9 is the Assistant Surgeon attached to the Government hospital, lalkudi. In pursuance of Ex. P. 17, he conducted autopsy on the dead body of chellakannu at 11. 30 a. m. on 28-9-1984. He found the following external injuries. 1. A cut injury 8 c. m. x 2 c. m. x 6 c. m. on the right shoulder just below right clavicular bone running downwards and inwards. 2. A punctured wound 3 c. m. x 1 c. m. x 4 c. m. on the centre of the forehead. Frontal bone broken. On internal examination he found a cut injury 5 c. m. x 1" cm. x 4 c. m. between right 2nd and 3rd ribs at the right 2nd inter-costal space at the right mid clavicular line. The thoracic cavity contained about 1 litre of fluid blood. The lower part of right upper lobe was ruptured 3 c. m. x 1 c. m. x 2 c. m. The stomach dilated, contained about 4 ounces of undigested rice particles. The small intestines dilated with digested food particles. The large intestines distended with faecal material. Extravasation of blood was found on the frontal region under the scalp. Frontal bone was fractured. There was laceration of brain on the front side. He was of the opinion that the deceased would appear to have died of shock and haemorrhage due to fracture of skull bone, laceration of brain and repture of lung, about 14 to 16 hours prior to autopsy. He was of the further opinion that injury No. 1 could have been caused by a spade while the victim was standing. Injury No. 2 could have been caused by a knife. Both the injuries are necessarily fatal and death would have occurred within a few minutes after sustaining the injuries. Ex. P. 18 is the post-mortem certificate. He was of the further opinion that injury No. 1 could have been caused by a spade while the victim was standing. Injury No. 2 could have been caused by a knife. Both the injuries are necessarily fatal and death would have occurred within a few minutes after sustaining the injuries. Ex. P. 18 is the post-mortem certificate. ( 11 ) P. W. 13 continued further investigation. He seized M. Os. 2 to 4 at 5. 30 p. m. on 28-9-1984 at the Government Hospital on being produced by P. W. 1, under the mahazar Ex. P-6. He seized the clothes M. Os. ll to 14 worn by the injured witness Chidambaram, under Ex. P. 7 mahazar. He also seized M. Os. 15 and 16 on being produced by P. W. 2, under Ex. P-8 mahazar. Exs. P. 6 to P. 9 were attested by P. W. 7. At about 7 p. m. P. W. 3 produced M. Os. 17 to 20 and they were seized under Ex. P 9. On the same day, he examined P. Ws. 1 to 3,6 and 7 and witness Chidambaram (since deceased ). Chidambaram died about two months after the occurrence due to some other cause. P. W. 13 searched for the accused. They were not available. On 30-9-1984 he examined P. Ws. 9 and 10. He arrested the first accused on 1-10-1984 at 8 a. m. at the junction of the road leading to velur. The first accused voluntarily gave a statement and it was reduced into writing. The admissible portion of the statement is marked as Ex. P-10. His statement was recorded in the presence of witnesses. In pursuance of the said confessional statement, the first accused took P. W. 13 and party and witnesses to his house and took out M. O. 1 from the heap of fuel-stick, stored on the south of the house of the third accused and produced the same. It was seized under cover of mahazar Ex. P-11. He also took out M. Os. 21 to 23 from the cattle shed of the third accused at 11. 30 a. m. and produced the same. They were seized under cover of mahazar Ex. P-12 attested by P. W. 7. Thereafter he was brought to the station. Since he was having some minor injuries, he was sent to the government Hospital with a memo. 21 to 23 from the cattle shed of the third accused at 11. 30 a. m. and produced the same. They were seized under cover of mahazar Ex. P-12 attested by P. W. 7. Thereafter he was brought to the station. Since he was having some minor injuries, he was sent to the government Hospital with a memo. Later he was to court for remand. P. W. 13 arrested the third accused on 6-10-1984 near the bus stand in Kulamanickam village at about 10 a. m. and later sent him to the court for remand. The second accused surrendered before the Judicial magistrate, Manaparai on 5-10-1984. P. W. 13 gave a requisition to the Judicial Magistrate to send the blood stained articles to the Chemical Examiner. P. W. ll is the Head Clerk attached to the judicial Second Class Magistrates Court, Lalkudi. He would depose about sending the blood-stained articles to the Chemical Examiner in pursuance of the requisition Ex. P. 19 requisition received from P.W.13, and also about the receipt of Exs. P-21 and P-22, the reports of the Chemical Examiner and the Serologist respectively. P. W. 13 examined the Medical Officer P. W. 8 on 22-11-1984. After completing the investigation he laid the charge-sheet against all the accused on 27-11-1984. .( 12 ) WHEN the accused were examined with reference to the incriminating pieces of evidence under Sec. 313, Crlp. C. they denied them as false. However, the second accused filed a written statement wherein he would state that accused 1 and 3 were not present at the scene place. He would further state that his mother was attacked by P. W. 2, Arumugam, witness Chidambaram (since deceased) on 25-6-1984 and in respect of the same, a complaint was given to the police. Thereafter they were convicted by the court on 14-9-1984. Even after the conviction, on account of lane dispute, they were threatening him. In respect of the same he gave a petition on 24-9-1984 at the Kallakudi Police station and in respect of the said complaint, Kallakudi Police came to the village on the morning of 27-9-1984 and asked the counter-petitioner, including witness Chidambaram, P. W. 2 Natesan and their brother one Arumugam to come to the police station. In respect of the same he gave a petition on 24-9-1984 at the Kallakudi Police station and in respect of the said complaint, Kallakudi Police came to the village on the morning of 27-9-1984 and asked the counter-petitioner, including witness Chidambaram, P. W. 2 Natesan and their brother one Arumugam to come to the police station. In respect of the same, on the night of the occurrence at about 8 p. m. the deceased began a wordy quarrel with his mother Sebasthi in front of his house. When he questioned, the deceased beat him with a broomstick. When his mother pushed the deceased, she fell over the spade handle lying there. At the same time witness Chidambaram and Natesan came there armed. P. W. 1 pelted stones and chased them. The tiles of his house were damaged. P. W. 3 did not know anything about the occurrence. P. Ws. 4 and 5 were not present at the scene place. He produced a copy of the complaint given by him at Kallakudi Police Station on 24-9-1984, along with his statement. .( 13 ) THE learned trial Judge after taking into consideration the oral and documentary evidence and for the reasons assigned in his judgment came to the conclusion that the prosecution has proved the case against all the accused in respect of the various charges framed against him and consequently convicted and sentenced them as stated in the opening para of the judgment. Hence this appeal. .( 14 ) MR. N. T. Vanamamalai, learned senior counsel appearing for the appellants took us through the recorded evidence and made various submissions. The learned senior counsel submits that the first information report given by p. W. 1 in this case contains full particulars and those particulars could not have been given by P. W. 1 himself, that it might have been prepared later and that as it was fabricated with deliberation, the entire case becomes suspicion. Next it was contended that there is no sufficient motive for the accused to murder the deceased. Next it was contended that there is no sufficient motive for the accused to murder the deceased. The learned senior counsel also submitted that even accepting the entire version of the prosecution case, the first accused cannot be convicted in respect of the death of the deceased Chellakannu as there was no overt act attributed to him and since the occurrence took place during a sudden quarrel, there cannot be any common intention to murder the deceased and as such the conviction of the first accused in respect of the murder of the deceased is not sustainable. The learned counsel vehemently argued that till the time of the occurrence, the accused party were crying to move the law by approaching the police and even on the morning of the day of occurrence on the basis of the complaint given by the second accused, Police came to the village and asked the witness Chidambaram, P. W. 2 Natesan and his brother to go over to the police station. He would state that the occurrence took place only about 10 away in front of the house of the accused. None of. the accused went to the scene place with weapons. It is only witness Chidambaram (since deceased) who came there. Then the deceased came there. During the quarrel, one blow was given by each accused 1 and 2 and in the circumstances, it cannot be said that their intention was to cause death. It is not in dispute that the incident took place during a sudden quarrel and nobody even thought that the said fight would take place on that day. Accused 2 and 3 only acted in a spur of the moment during the course of the sudden quarrel and in the heat of passion each one gave one blow and did not pursue further and hence the offence committed by them as regards the death of the deceased would not come under Sec. 302, I. P. C. , but it will only be an offence of culpable homicide not amounting to murder, squarely falling under Sec. 304-II, I. P. C. In support of the same, the learned senior counsel drew our attention to various decisions of the Supreme Court. .( 15 ) THE point that arises for determination in the appeal is whether the prosecution has proved the guilt of these accused in respect of all the offences, and if so, what is the nature of the offence committed by each of the accused in respect of the deceased Chellakannu. .( 16 ) ON the motive aspect, even the admitted case of the-accused is that in respect of the lane which is in between the houses of the accused and P. Ws. 1 to 3, there used to be quarrel often and a police complaint was also given earlier against the deceased party and they were fined. It is also not in dispute that a police complaint was given three days before the occurrence, namely, on 24-9-1984 and in respect of the same, on the date of occurrence the police people asked the deceased party to go over to the police station. Thus that there is ill-feeling between the two families is clearly established. It is also in evidence that on the date of occurrence, just before the occurrence, the first accused was abusing the deceased as well as the members of her family. On hearing the same, the deceased witness Chidambaram and P. W. 2 came outside their house and questioned the first accused. Then the incident took place. Subsequently the deceased came crying and went near the deceased witness Chidambaram and she was also stabbed. Hence, it cannot be said that there is no motive for the occurrence. Whatever it may be, in a case where there is direct eye witnesses to the occurrence, motive does not assume importance. The question to be considered is whether the evidence adduced on the side of the prosecution is reliable and acceptable. When once it is found that the evidence with regard to the actual occurrence is found to be acceptable, absence of motive would be of no consequence. .( 17 ) IN the instant case, the occurrence is not in dispute. The question is whether the occurrence took place in the matter spoken to by the prosecution-witnesses or as put forward by the accused. In respect of the actual occurrence, we have got the evidence of three injured witnesses plus P. Ws. 4 and 5. .( 17 ) IN the instant case, the occurrence is not in dispute. The question is whether the occurrence took place in the matter spoken to by the prosecution-witnesses or as put forward by the accused. In respect of the actual occurrence, we have got the evidence of three injured witnesses plus P. Ws. 4 and 5. It is the evidence of P. W. 1 who is the son of the deceased Chellakannu, that on the day of occurrence, namely, on 27-9-1984 at about 8. 30 p. m. he and his mother the deceased Chellakannu, step-mother Pappu and one Malarkodi were sitting in front of their house and conversing. At the time, P. W. 2 and witness Chidambaram (since deceased), their paternal uncles, were inside the house. The first accused was abusing them by using filthy language in respect of the lane dispute between the two families. When witness Chidambaram came and questioned him as to why he was abusing them like that, the first accused immediately entered into his house and picked up the spear M. O. 1 and stabbed him on the left flank. The second accused also stabbed Chidambaram on the left flank with a button knife and the intesthe came out. On seeing the same, the deceased chellakannu, mother of P. W. 1, raised a hue and cry and went near Chidambaram. At that time, the third accused beat her with spade on her right shoulder, by taking the same from his nearby house. The second accused stabbed her on the forehead with button knife which he was having. On receipt of the same, she fell down. When P. W. 2 went to intervene, the first accused stabbed him with m. O. 1 on the forehead above the left eye brow. P. W. 1 also met the same fate when he went near his mother and the second accused stabbed him on the left side of the forehead with button knife and on the back (thrice) and on the left hand. P. W. 3 who came there was also attacked by the first accused and she sustained an injury on the right shoulder. P. W. 3 was also beaten with stick on the left hand by A. 3. In respect of this occurrence, an earliest report was given by P. W. 1 and it contains all the details including the presence of witnesses. P. W. 3 was also beaten with stick on the left hand by A. 3. In respect of this occurrence, an earliest report was given by P. W. 1 and it contains all the details including the presence of witnesses. The present version of P. W. 1 is further corroborated by the evidence of the injured witnesses P. W. s2 and 3 also by the independent witnesses, P. Ws. 4 and 5. Nothing tangible was elicited in their cross examination to discredit their testimoney. The only contention put forward by the learned counsel for the appellants is that in respect of the sequence of events with regard to the attack on Chidambaram as well as the deceased Chellakannu, P. W. 4 has stated that the deceased Chellakannu was attacked first and thereafter Chidambaram was attacked and that this is in conflict with the prosecution case. As rightly contended by the learned Additional Public Prosecutor and as observed by the learned trial Judge this witness was examined after a lapse of nine months and due to lack of memory he has sworn to that effect in cross-examination. Even otherwise, it is to be noted that all these persons were attacked at or about the same time. They were attacked, one after another. There is no time interval while attacking one person and another. During the sudden quarrel, they were attacked one after another when they went to question the first accused who was abusing them. Therefore, the said contradiction would not in any way go to the root of the case and it would not affect the case of the prosecution in any way. .( 18 ) NEXT it was vehemently argued by the learned Senior counsel that the first information report launched in this case by P. W. 1 contains wealth of details, that P. W. 1 could not have given all the details and as such the entire prosecution case is suspicious and on that ground alone the entire case has to be thrown out. We do not find any merit in the said contention. P. W. 1 is a person who was sitting outside his house along with the deceased and he witnessed the entire occurrence and there is no difficulty for him in giving the details. Above all, he is an injured witness. His presence at the scene place cannot be disputed. We do not find any merit in the said contention. P. W. 1 is a person who was sitting outside his house along with the deceased and he witnessed the entire occurrence and there is no difficulty for him in giving the details. Above all, he is an injured witness. His presence at the scene place cannot be disputed. It is to be noted that it is nowhere challenged in cross-examination the fact that P. Ws. 1 to 3 were injured during the incident besides the deceased sustaining injuries at the hands of the accused. Next it was contended by the learned senior counsel that there is delay, in receipt of the first information report by the Magistrate. It is to be noted that the occurrence took place at 8. 30 p. m. and the report was launched on the same night at 4 a. m. and it was received by the Magistrate at 5. 15 a. m. There is absolutely no delay as it is seen that immediately after the occurrence, the injured were taken to the hospital after securing a taxi and it is only from the hospital, P. W. 8, the Medical officer, sent intimation to the Police. On receipt of information, the Head constable went there and recorded the statement and thereafter he returned to the police station and registered a case and prepared first information report with copies and they were sent to the Magistrate and the police officials. We do not find any delay in giving the report as well as receiving the same by the magistrate. Hence, we do not find any force in the contention of the learned senior counsel that there was delay in receipt of the report by the Magistrate. The presence of P. Ws. 1 to 3 at the scene, as already stated, cannot be disputed as they are injured witnesses and they are the residents of the said house. Hence their presence at the scene place is probable and natural. Though it is stated that p. W. 5 is a chance witness, he has given reasons for his presence at the time of the occurrence and there is absolutely nothing to reject his evidence. The presence of P. W. 4 at the scene cannot be disputed as he was employed in the house of P. W. 1 and that there is no difficulty for his witnessing the incident. The presence of P. W. 4 at the scene cannot be disputed as he was employed in the house of P. W. 1 and that there is no difficulty for his witnessing the incident. Thus, on a careful analysis of the entire evidence of P. Ws. 1 to 5, we find that their evidence is cogent, convincing and trustworthy and their evidence clearly establishes the attack of the deceased as well as P. Ws. 1 to 3 by these accused 1 to 3. There is absolutely nothing to probabilise the version of the accused that the second accused alone was there and accused 1 and 3 were not there, and that on the day of occurrence P. Ws. 1 to 3 tried to attack the mother of the second accused that the second accuseds mother also sustained injuries and further they also chased the second accused and attacked the second accused and during the course of the transaction he attacked P. W. 1 and witness Chidambaram (since deceased) and that during the quarrel, the deceased sustained injuries. There is absolutely nothing to probabilise the version of the accused. Neither the second accused nor his mother was injured and they did not give any report. On the other hand, the accused have trotted out the said version only in order to escape from the guilt and it has been rightly rejected by the learned Sessions judge. The ocular testimony adduced in this case is amply corroborated by the medical evidence adduced through P. W. 8 who examined P. Ws. 1 to 3 immediately after the occurrence and issued wound certificates. P. W. 8 was of the opinion that those injuries could have been caused at the time and in the manner alleged. The evidence of P. W. 9, the doctor who conducted autopsy over the dead body of Chellakannu, is to the effect that the deceased could have sustained the injuries as alleged by the prosecution at the time and in the manner alleged. The medical evidence stands unrebutted. The learned senior counsel did not seriously dispute the finding of the learned trial Judge with regard to the guilt of the accused. The medical evidence stands unrebutted. The learned senior counsel did not seriously dispute the finding of the learned trial Judge with regard to the guilt of the accused. .( 19 ) AFTER finding that he may not succeed in his contentions, the learned counsel submitted that the offence committed by accused 2 and 3 with regard to the deceased Gnellakannu would not come under Sec. 302 read with Sec. 34, i. P. C. but will fall under Sec. 304, Part I. I. P. C. With regard to the first accused, the learned senior counsel submitted that he cannot be convicted under Sec. 302 read with Sec. 34, I. P. C. and he is entitled to acquittal. No argument was advanced in respect of the other offences and convictions. As regards the attack on the deceased Chellakannu, it is not in dispute that the first accused, though armed with a spear, did not attack the deceased. Admittedly the occurrence took place during a sudden quarrel when the first accused was abusing the members of the family of the deceased as well as P. Ws. 1 to 3. The deceased intervened while witness Chidambaram was attacked. At that time, accused 2 and 3 are said to have given one blow each. The third accused cut her with a spade on the right shoulder and the second accused stabbed her with a button knife on the forehead. Thus, by no stretch of imagination can it be said that there was an. intention to murder the deceased and that the first accused shared the common intention. Accused 2 and 3 can be convicted for their individual acts and not for the commission of the offence in pursuance of the common intention, that too the murder of the deceased. Thus, we are of the view that the conviction of the first accused under Sec. 302 read with Sec. 34, I. P. C. , in respect of the murder of the deceased Chellakannu is not sustainable and he is entitled to acquittal of this charge of murder. As regards accused 2 and 3, it was rightly pointed out by the learned senior counsel for the appellants, Mr. N. T. Vanamamalai, that it is only during the sudden quarrel the entire occurrence, took place and accused 2 and 3 gave one blow to the deceased Chellakannu. As regards accused 2 and 3, it was rightly pointed out by the learned senior counsel for the appellants, Mr. N. T. Vanamamalai, that it is only during the sudden quarrel the entire occurrence, took place and accused 2 and 3 gave one blow to the deceased Chellakannu. It is to be noted that even according to the prosecution the first accused abused the deceaseds family in respect of the lane dispute which has been there for a long time. When witness Chidambaram came out of his house and questioned him, he was attacked. When the deceased Chellakannu raised a hue and cry and went near witness Chidambaram, the third accused cut her with a spade on the right shoulder and the second accused stabbed her with a button knife on the forehead. The injuries proved fatal. It is to be noted that the accused were not armed at the time of quarrel. During the course of the quarrel they are alleged to have taken the weapons lying in the nearby house and gave one blow each. It is vehemently argued by the learned senior counsel that till the time of the occurrence, the accused were setting the law in motion and even on the day of occurrence, the first accused gave a complaint to the police and the deceased party was directed to go over to the police station and that it is only during the course of the sudden quarrel, these accused were provoked and they inflicted one blow each. Nobody ever thought that a fight would take place on the date. In the circumstances, it cannot be said that their intention was to cause death as there is absolutely no material to infer intention to murder. In this connection, the learned senior counsel drew our attention to three decisions of the Supreme court. In Gurdip Singh vs. State of Punjab, AIR 1987 SC 1151 it has been held:"however, on a re-appraisal of the entire evidence, we find it difficult to agree with the trial Court that the appellants are guilty for an offence under Sec. 302, I. P. C. The materials available create considerable in our mind as to whether the appellants really intended to kill Kishore Singh or whether his misconduct pushed them to wreak revenge against the deceased and in this pursuit attacked him. We are not unmindful of the fact that the 7th injury noted in the postmortem certificate is in the ordinary course sufficient to cause death of the deceased. But "we are not fully satisfied that the appellants intended to kill the deceased. The correct approach on the evidence and other circumstances in this case would, according to us, be to find the accused guilty under Sec. 304, Part I, and to sentence them under that section. "in Surinder Kumar vs. Union Territory, Chandigarh, AIR 1989 SC 1904 = 1989 Crllj. 883 it was held: "to invoke Exception 4 to Sec. 300 four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided "he has not acted cruelly. Thus where in case of quarrel between the deceased and the accused regarding possession of premises, it was reasonable to infer from the facts that the deceased must have intervened on the side of his brother and in the course of the scuffle he received injuries, one of which proved fatal, the accused would be entitled to the benefit of the Exception 4 to Sec. 300. merely because three injuries were caused to the deceased during the scuffle it could not be said that he had acted in a cruel and unusual manner. Under such circumstances, the accused could be convicted under Sec. 304, Parti. " in Khanjan Pal vs. State of UP. merely because three injuries were caused to the deceased during the scuffle it could not be said that he had acted in a cruel and unusual manner. Under such circumstances, the accused could be convicted under Sec. 304, Parti. " in Khanjan Pal vs. State of UP. , 1990 (4) SCC 53 it has been observed:"the evidence clearly established that the whole incident was a sudden development and that the appellant had acted at the spur of the moment and without any premeditation. There had been no ill-will or enmity between the two. A casual remark made by the appellant provoked the deceased and the altercation ensued which culminated in the stabbing with knife. The appellant used the knife only once and did not act in any cruel manner. It was in the sudden quarrel in heat of passion that the appellant inflicted the injury on the deceased without any intention to cause death but having knowledge "that such act was likely to cause the death of the deceased. In such circumstances, the act of the appellant falls under Exception 4 to Sec. 300,i. P. C. and the appellant is liable to be convicted only under Sec. 304, Part II, I. P. C. "applying the ratio in the above quoted decisions to the facts of this case, we are of the view that the offence committed by Accused 2 and 3 in respect of the deceased Chellakannu would fall under Sec. 304, Part II, I. P. C. and not under sec. 302 read with Sec. 34, I. P. C. .( 20 ) IN respect of the other offences, there is acceptable evidence with regard to each of the accused. We do not find any material to interfere with the same. .( 21 ) IN the result, the conviction and sentence awarded to accused 1 to 3 under sec. 302 read with Sec. 34, I. P. C. are set aside and the first accused is acquitted of the offence under Sec. 302 read with 34, I. P. C. while accused 2 and 3 are convicted under Sec. 304, Part II, I. P. C. and sentenced to R. I. for five years. The conviction of the first accused under Sec. 326 and 324,i. P. C. and the sentence of r. I for 2 years and 6 months respectively; the conviction of the second accused under Secs. The conviction of the first accused under Sec. 326 and 324,i. P. C. and the sentence of r. I for 2 years and 6 months respectively; the conviction of the second accused under Secs. 307 and 324, I. P. C. and the sentence of R. I for 3 years and 6 months respectively and the conviction of the third accused under Sec. 323, I. P. C. and the sentence of 3 months R. I are confirmed. The sentences of imprisonment are directed to run concurrently. The appeal is dismissed with the above modification.