Judgment :- Janarthanam, J. Accused 1 to 3, aggrieved by their conviction and sentence in S.C.No.65 of 1985 on the file of Court of Session, Madurai North at Dindigul, came forward with this appeal. 2. The brief facts are: (a) The scene village Lakshmipuram is situate within the jurisdiction of Veerapandy Police Station Accused 1 to 3 are the residents of the said village. Accused 1 and 2 are brothers. Accused 3 is the son of accused 2. Accused 1 is an ex-serviceman and profitably employed as a driver at Pan-dyan Roadways Corporation of which P.W.12 is the Divisional Manager. (b) One Bose (since deceased) was noneelse than the brother of P.W.1. Their parents are one Mot-taisami and Karuppayee. P.W.4 is their paternal uncle. The father and sons, though lived separately, cultivated the family lands jointly. The family owned about five kulis of land in S.No.354/ 4 situate two furlongs on the east of the village. P. W.3, a farm servant, lives in a hut put up therein. There is a well in the said survey number. On the west of the well, the lands of accused 1 are situate. The well is a common well, irrigating the lands belonging to the family of the deceased as well as accused 1. Each of them is entitled to a half share in the well. Initially their lands were irrigated by means of baling apparatus. (c) Some four years prior to 11. 1984, the day of the occurrence, accused 1 and Karuppayee individually applied to the Assistant Engineer, Tamil Nadu Electricity Board, Chinnamanur, in whose office P.W.11was the Assistant Accounts Officer, for service connection for installation of an electric motor in the said well. Ex.P-16 is the copy of the application given by Accused 1. Since he was an ex-serviceman, he was immediately provided with the service connection on priority basis. Ex.P-17 is the copy of the application submitted by Karuppayee. The said application, it is said, was not given any precedence. Accused 1 was said to have installed an electric motor and pumpset on the south of the well and had been irrigating his lands all along. (d) One month prior to the occurrence, accused 1 made arrangements to deepen the well. The father of the deceased, in fact, prevented such deepening without their consent, which led to the convening of a panchayat, at the instance of both the parties. (d) One month prior to the occurrence, accused 1 made arrangements to deepen the well. The father of the deceased, in fact, prevented such deepening without their consent, which led to the convening of a panchayat, at the instance of both the parties. P.W.5, one Narayana Thevar, Ramasamy, Gurusamy and certain others effected mediation between them. In the panchayat, it was resolved that accused 1 should be allowed to deepen the well without any sort of an objection from the family of the deceased. Accused 1, on his part, should not raise any objection for the installation of an electric motor by the family of the deceased for drawing out water from the well, provided payment of the value of the expenses incurred for deepening the well had been made by them. The verdict so rendered was stated to have been acceptable to both the parties and accused 1 was said to have deepened the well. (e) The family of the deceased got a favourable order from the Electricity Department for installation of the Electricity motor in their lands. The family of the deceased wanted to lay a bed for the installation of the motor on the north of the well. On 11. 1984 at about 10 a.m., P.W.1 and his brother-the deceased attempted to lay a bed as proposed. Accused 1 came there are resisted the laying of the bed. He was said to have suggested to receive the value of their halfshare in the well and relinquish their rights therein. P.W.1 and the deceased, it is said, expressed their disapproval and stated that the verdict of the panchayat was binding on him and they had the right to install the electric motor on payment of half share of the expenses incurred by him for deepening the well. In the process of objection and counter-objection, a wordy altercation ensued between them. P.W.3, who was then attending to agricultural operations came there and effected a mediation between them and avoided any untoward incident happening. However at the time of departing from there, accused 1 was stated to have issued a threat by saying that he would see that they were done to death before ever the installation of the electric motor was made. Thereafter, P.W.1 and the deceased completed the operation of laying of the bed and went home. (f) On 11. However at the time of departing from there, accused 1 was stated to have issued a threat by saying that he would see that they were done to death before ever the installation of the electric motor was made. Thereafter, P.W.1 and the deceased completed the operation of laying of the bed and went home. (f) On 11. 1984, P.W.1 and the deceased carried the necessary pipes and other accessories to their lands. After placing them in their lands, they returned home for taking the pumpset to complete the process of installation of the motor. The time was then 11.30 a.m. While they were nearing the house of one Chinnamottaisamy, accused 1 to 3, it is said emerged there arming themselves with weapons. Accused 1 was said to be armed with M.O.2 aruval, accused 2 with M.0.3 stick and accused 3 with M.O.1 soori knife. Accused 1 was said to have instigated accused2and 3 to kill them. Accused 3 was said to have stabbed the deceased with M.O.1 soori knife on the inguinal region. Accused 1 was said to have cut him with M.O.2 aruval on his head. Accused 2 was said to have given a hit with M.O.3 stick, which fell on his right wrist. P.W.1 raised a hue and cry as ‘ayyoh’ and entreated them not to indulge in such violence. The moment P.W.1 raised such a hue and cry, accused 1 was said to have instigated accused 2and 3 to kill him also. Immediately all the three accused mounted an attack on P.W.1,who,in turn, warded off such attack with his hands. In such process, P.W.1 was stated to have sustained injuries on his left shoulder, right wrist right thumb, back of left hand and head, as a result of the attack made by accused 3 with M.O.1. He also sustained injuries on his right shoulder and left little finger as a result of the attack by accused 1 with M.O.2. The repeated attempts made by accused 2 to beat him on his head by means of M.O.3 stick proved futile and such hits accidentally fell on the head and face of accused 1 and 3, causing them certain injuries on their person. P.W.2 and one Palanichamy came there running and entreating accused not to indulge in such violence. Thereafter, all accused ran away from there towards south with the weapons in their hands. P.W.2 and one Palanichamy came there running and entreating accused not to indulge in such violence. Thereafter, all accused ran away from there towards south with the weapons in their hands. After a shortwhile, the victim Bose died. Thereafter, the body of the deceased the said Bose was removed to his house situate nearby and the body was placed in the pial. (g) Then the injured P.W.1 was taken by P.W.4 in a cart belonging to one Thangaraj to Veerapandy Police Station, for the purpose of lodging an information. They reached the police station at 2.30 p.m. Then P.W.14 the Sub Inspector of Police was in charge. P.W.1 gave Ex.P-1 complaint, which was attested by P.W.4. Then P.W.14 registered a case in Crime No.227 of 1984 for offences under Secs.302 and 307, I.P.C. He seized bloodstained clothes of P.W.1, M.O.4 kaili and M.O.5 shirt. He prepared express reports and sent the same to the concerned officials. Ex.P-18 is the express FIR. He despatched the victim P.W.1 to the hospital for the purpose of treatment. (h)P.W.15 is the Inspector of Police. On receipt of the express FIR at 4 p.m., he took up further investigation of this case. He went to the scene village along with P.W.14. After inspecting the scene at 4.45 p.m.,he prepared Ex.P-2 observation mahazar. He drew a rough sketch, Ex.P-19 of the scene. At 5.45 p.m., he seized from the scene, M.O.6 bloodstained earth and M.O.7 sample earth under Ex.P-3. Exs.P.2 and P-3 had been attested by P.W.6. Between 6.30 and 8.30 p.m., he held inquest over the body of the deceased. Ex.P-20 is the inquest report. During inquest, he examined P.W.2. After inquest he caused the body of the deceased to be sent through the Constable, P.W.13 for the purpose of autopsy. He examined P.Ws.3 and 5. (i) P.W.7 is the Medical Officer attached to the Government Hospital, Theni. At 4.30 p.m., he treated P.W.1 for certain injuries said to have been caused due to an attack with knife and aruval by three Known persons at 11.30 a.m. that day at Lakshmipuram. Ex.P-5 is the wound certificate. P.W.1 was referred to the Radiologist, P.W.8, for taking X-rays of the skull, chest and little finger. Accordingly X-rays had been taken by P.W.8. M.O.8 series are the X-rays. Ex.P-6 is his report revealing no fracture. Ex.P-5 is the wound certificate. P.W.1 was referred to the Radiologist, P.W.8, for taking X-rays of the skull, chest and little finger. Accordingly X-rays had been taken by P.W.8. M.O.8 series are the X-rays. Ex.P-6 is his report revealing no fracture. P.W.7 is therefore of opinion that all the injuries are simple in nature and they could have been caused in the manner and time alleged. (j) P.W.15 searched the house of accused 1 at 10 p.m. On credible information at 5.15 a.m. on 111. 1984, he along with P.W.14 went to Thirumal-apuram Vilakku, a segment of Theni and arrested accused 1 to 3 there at 6 a.m. On interrogation, each of them gave a voluntary confession under Sec.27 of the Evidence Act. Exs.P-10, P-12 and P11 are respectively the admissible portions of the confession statements of accused 1 to 3. Pursuant to such confessional statements, the weapons, namely, M.Os.2,3 and 1 as well as blood stained shirts of accused 1 and 3 M.Os.9and 10 were seized under mahazars, Exs.P.13, P-15 and P-14 respectively. The confession statements and mahazars have been arrested by P.W.10. (k) P.W.9 is the Medical Officer, Government Hospital, Theni. He commenced autopsy over the body of the deceased at 8.30 a.m. on 111. 1984. Ex.P-9 is the post-mortem certificate. He would opine that injury No.1 is possible by M.O.I; injury No.2 is possible by M.O.2 and injury No.3 is possible by M.O.3 and injury Nos.1 and 2 with their corresponding internal injuries are necessarily fetal. After autopsy, P.W.13 seized from the body the bloodstained clothes M.O.11 shirt, M.O.12 dhoti and M.O.13 underwear and handed over them at the police station, which was seized under Form No.95. (l) All the accused were brought to the police station at 9.45 a.m. The clothes of the accused were found to be bloodstained. After giving alternative clothes, he seized the clothes of the accused. M.0.14 is the dhoti of accused 1. M.Os. 15 and 16 are respectively the dhoti and shirt of accused 2. M.O.17 is the dhoti of accused 3. He found on the persons of accused 1 and 3 certain injuries. He therefore sent them to the Government Hospital, Theni. He examined P.W.10 and others. M.0.14 is the dhoti of accused 1. M.Os. 15 and 16 are respectively the dhoti and shirt of accused 2. M.O.17 is the dhoti of accused 3. He found on the persons of accused 1 and 3 certain injuries. He therefore sent them to the Government Hospital, Theni. He examined P.W.10 and others. (m) P.W.9 examined accused 3 at 11.30 a.m. Accused 3, it is said, told the doctor that the injuries on his person were caused due to assault with tholukambu by two known persons at 11.30 a.m. on 11. 1984. He treated him for the injuries. Ex.P-7 is the wound certificate issued to accused 3. He would opine that all the injuries are simple in nature and could have been caused at the time and in the manner alleged. (n) P.W.9 examined accused 1 at 11.35 a.m. Accused 1, it is said, told the doctor that the injuries on his person were caused due to assault with tholukambu and kathi by two known persons at 11.30a.m. on 11. 1984.He treated him for the injuries. Ex.P-8 is the wound certificate issued to accused 1. He would opine that the injuries found on his person were simple in nature and they could have been caused by beating with stick, (o) After treatment, P.W.15 sent accused to the court for purposes of remand. He examined P.Ws.1, 4 and 12. At 6.30 p.m., he returned to the scene village and after inspecting the place where the electric motor was attempted to be installed by P.W.1 and the deceased, and prepared anobserva-tion mahazar, Ex.P-4 in the presence of P.W.6. He also drewa rough sketch of that place, Ex.P-21. He examined P.Ws.6 and 9. On 111. 1984, he sent Ex.P-22 requisition to the court for forwarding the bloodstained articles for chemical analysis. Accordingly, all the incriminating material objects were sent to the Chemical Examiner for examination. Exs,P-23 and P-24 are the reports of the Chemical Examiner a nd the Serologist respectively. On 2. 1985, he examined P.Ws.7 and 8. On 22. 1985, he examined P.W.l1. After completing the investigation, he laid the final report under Sec.173(2), Crl.P.C. before the Judicial Second Class Magistrate, Periyakulam on 23. 1985 for offences appeared to have been committed by accused 1 to 3. 3. On 2. 1985, he examined P.Ws.7 and 8. On 22. 1985, he examined P.W.l1. After completing the investigation, he laid the final report under Sec.173(2), Crl.P.C. before the Judicial Second Class Magistrate, Periyakulam on 23. 1985 for offences appeared to have been committed by accused 1 to 3. 3. Upon committal, learned Sessions Judge framed charges against accused 1 to 3 under Secs.302 read with 34 and Sec.3C 7 read with 34, I.P.C. 4. The accused, when questioned as respects the charges framed against them, denied the same and claimed to be tried. 5. The prosecution, in a bid to prove the charges framed against the accused, examined P.Ws,l to 15, filed Exs.P-1 to P-24 and marked M.Os.1 to 17. 6. The accused, when questioned under Sec.313, Crl.P.C. as respects the incriminating circumstances appearing in evidence against them, denied (heir complicity in the crime. Accused 1 would say that on several occasions, the deceased party demanded from him the sale of his lands and he, in turn, refused to part with those lands. Accused 2 would add thus: Accused 1 was attacked first. He went to the rescue of accused 1. At that time, Chinna Bose (P.W.1) repeatedly beat him on his head by means of a tholukambu. He (Chinna Bose) was pushed down. As a result of his falling, he sustained certain injuries on his person by certain broken pieces of ceramics found strewn there. He (accused 2) and Periya Bose (deceased) grappled with each other. Karuppusami (P.W.2) beat him by means of a tholukambu and he avoided the hit and consequently, the same fell on the deceased. Mottaisamy (father of the deceased) came there with a soori knife. He attempted to stab him. In order to avoid such a stab, he slided and in such a process, a stab fell on the deceased. The bloodstains on the earth recovered in front of the house of Chinna Mottaisamy pertained to them. He was subsequently taken to the house of one Asari. After an hour, the Sub-Inspector (P.W.14) came and took all the three accused to Veerapandy Police Station. They did however choose to examine any witness on their behalf. 7. The bloodstains on the earth recovered in front of the house of Chinna Mottaisamy pertained to them. He was subsequently taken to the house of one Asari. After an hour, the Sub-Inspector (P.W.14) came and took all the three accused to Veerapandy Police Station. They did however choose to examine any witness on their behalf. 7. Learned Sessions Judge, on consideration of the materials placed and after hearing the arguments of learned Public Prosecutor as well as learned Counsel for the defence, however found all the three accused guilty under Secs.302 read with 34 and Sections 307 read with 34, I.P.C., convicted them thereunder and sentenced each of them to rigorous imprisonment for seven years for the offence under Secs.307 read with 34, I.P.C. and to imprisonment for life under Secs.302 read with 34, I.P.C., with a direction for the sentences to run concurrently. Hence the appeal. 8. Learned counsel appearing for the appellants accused would strenuously contend that the credibility of the case of the prosecution got affected and dwindled to such an extent by the presence of the existence of certain imponderable factors getting reflected from the materials available on record, the consequence of which is that it is not possible to place any reliance, much less safe reliance upon the testimony of the witnesses for the prosecution to fasten or mulct criminal liability upon any of the appellants-accused for any offence whatever as had been done by the court below and therefore it is that the case of the prosecution deserves to be thrown lock, stock and barrel, in the sense of acquitting all the accused by giving them the benefit of reasonable doubt and such factors, he would say, consist of the following: (1) P.Ws.1 and 2, the ocular witnesses, closely related to the deceased, will, in the very nature of things, be very much interested in the cause and welfare of the deceased and such interested testimony cannot at all be taken at the face value without proper scrutiny and if such exercise is resorted to be done, it cannot withstand the test of rule of probabilities. .(2) To say that the investigating agency arrived at the scene of occurrence in the evening subsequent to the lodging of the first information Ex.P-1 at 2.30 p.m. in the police station is not reflecting the reality of the situation; but, On the other hand, within a short time after the occurrence at 11.30 a.m., the investigating police personnel were there and they manipulated and fabricated a version suiting to the exigencies of the case of the prosecution, after deep deliberation and such version had been projected in Ex.P-1 as if the same had been laid before the police station by P.W.1 on his own accord. .(3) The medical evidence available on record as relatable to the manner and mode of causation of injuries on the person of the deceased is indirect conflict with the testimony of ocular witnesses, thereby discrediting their version. .(4) The projection of a theory by the ocular witnesses explaining the injuries sustained by accused 1 and 3 looks, on the face of it incredible and such an explanation had been resorted to be made, obviously in a bid to suppress the origin and genesis of the occurrence. 9. Learned Additional Public Prosecutor would however contend that though the submission, as projected by learned counsel appearing on the otherside, wear a credible look of tenabilily at first sight,yet the same, it is subjected to careful analysis in the light of the evidence available on record, the veil covering the face of tenability would get pierced revealing the ugliness taking shelter thereunder. 10. There is no denial of the fact that accused 1 and the family of the deceased are neighbouring land owners. Admittedly, their lands had been irrigated from a common well and each of them is entitled to half share therein. The irrigation which was hitherto done by means of a baling apparatus had been abandoned by accused J and he resorted to install an electrical motor, alter getting service connection, on a priority basis, traceable to his position as an ex-serviceman some four years prior to the occurrence. No objection forthcame from the side of the members of the deceased family at that time. No objection forthcame from the side of the members of the deceased family at that time. However, stout opposition emerged from the family members of the deceased, when accused 1 started deepening the well to have adequate resources of water one month prior to the occurrence on the ground of non-obtaining their consent for the deepening operation. The crises that arose then was however sorted out by the convening of a panchayat by good samaritan persons like P.W.5 and others. The verdict that was reached in the said panchayat was acceptable to both the parties and accused 1 subsequently performed the fact of deepening the well. 11. Trouble again erupted when the family of the deceased was favoured with an order by the Electricity Department to install an electric motor pumpset in their lands. When P.W.1 and the deceased made arrangements for laying of a bed two days prior to the occurrence, accused 1 resiled from the verdict of the panchayat and wanted the deceased’s family to walk away without claiming any right in the well by simply receiving the value of the half share of the well. Such, a change of position was not acceptable to P.W.1 and the deceased and a wordy altercation in fact arose between them and accused 1. Before such a wordy quarrel tending to result in any untoward incident of unexpected happening, there was timely inter-vention of the farm servant, P.W.3, who somehow or other pacified both the groups for the lime being. The deceased and P.W.1 were however adamant in laying the bed for the installation of the pumpset. Then accused 1 left the scene with the issuance of a threat that the contemplated installation of the pumpset was not likely to get fructified, in the sense the the persons responsible for making the dare-devil attempt towards that end may not be alive to see such installation. P.W.1 and the deceased, feeling that such a threat could not be anything but an empty one, going by the proverbial saying that "words will not break bones’, did not take it seriously. Their thinking in that direction had a temporary life, in the sense that no untoward incident happened that day or the next day and the day following upto 11.30 a.m. 12. Their thinking in that direction had a temporary life, in the sense that no untoward incident happened that day or the next day and the day following upto 11.30 a.m. 12. P.W.1 and the deceased while returning home after leaving the pipes and other accessories in the site for carrying the pumpset to the land, as quirk of fate would have it, accused 1, in a bid to translate into action what he had earlier said, emerged on their way near the house of Chinna Mottaisamy accompanied by accused 2 and 3. arming themselves and mounted an attack. This aspect of the case is getting revealed by the testimony of P.Ws.1 and 2. There is nothing to doubt the sequel of events that had happened, as discussed above, which led to the emergence of the occurrence, when especially the defence theory that the family of the deceased agreed to receive Rs.7,500 representing the value of the half share in the well for relinquishing their right therein in favour of accused 1 and an advance of Rs.500 had in fact been paid and there was no question of the members of the deceased’s family installing any motor pumpset in the well was not at all probabilised by any material available on record, except that the suggestion thrown to P.W.5 therefor remained as a shot made in the darkness without serving any purpose, in the sense of the same being denied. 13. The presence of P.Ws. 1 and 2 in the scene, we feel, can never be disputed or doubted because of various factors1. P.W.1 was one of the victims of attack and he sustained injuries. The defence did not at all dispute his presencein the scene. He was the first informant in this case. That the first information giving a graphic account of the occurrence reached the police station, which is 14 Kms. away from the scene within three hours after the occurrence is suggestive of the fact that there could not have been any bleak possibility of presenting an embellished or embroidered version. Such being the position, his evidence cannot slightly be brushed aside so lightly by saying that he is an interested witness. 14. As regards P.W.2, he had given satisfactory explanation for his presence at the scene. Such being the position, his evidence cannot slightly be brushed aside so lightly by saying that he is an interested witness. 14. As regards P.W.2, he had given satisfactory explanation for his presence at the scene. What all would state is that at or about the time of the occurrence, he started from his house to go to the bus stand to go to Theni for purchase of manure for his fields. While he was to pass Chinna Mot-taisamy’s house, he had the fortuitous opportunity of watching the occurrence. His presence in the scene at that time cannot at all be stated to have been explained by trotting out a reason to explain his otherwise inexplicable presence, in the scene. To put in otherwise, it cannot be stated that it was indeed a curious coincidence that he was present there exactly at the time when the assault took place. Pertinent it is to note here that for an agriculturist like P.W.2, there could not have been any greater interest than to attend his crops in the best of fashion by proper application of manures at the appropriate lime, so as to gel good yield for better remuneration. He would have thought of going to the nearby town Theni to purchase manure after finishing what little bit of work he had in his field and after having his breakfast. Further it is but normal for the business enterprises to commence their business at or about 9 a.m. In such circumstances, we are not persuaded to doubt his presence in the scene. 15. His conduct at the time of occurrence is also quite relevant. The moment P.W.1 was stabbed he, along with Palanichamy, who was then stated to be available, rushed towards appellants-accused raising a hue and cry, obviously in a bid to scare them away from there without any further attack. Learned counsel for the appellants-accused would however argue that P.W.2 could not have been present in the scene at the time of occurrence, inasmuch as he had stated during the course of cross-examination that he and Palanichamy ran towards the scene after the occurrence. Such an argument, in our opinion is rather built on the misreading of the evidence. P.W.2 categorically stated that he and Palanichamy alone were bodily present, at the time of the occurrence. Such an argument, in our opinion is rather built on the misreading of the evidence. P.W.2 categorically stated that he and Palanichamy alone were bodily present, at the time of the occurrence. Both of them ran towards P.W.1 the moment they saw him being initially stabbed and while so running, they made a hue and cry. 50 persons, he would further say, came to the scene after the occurrence, obviously after hearing the hue and cry. He had not at all stated, that he and Palanichamy came to the scene only after the occurrence. In fact they were witnessing the occurrence from a nearby place and the act of running of P.W.2 happened after the initial stabbing on P.W.1 and this aspect of his evidence in cross-examination gave rise to such an argument. .16. The ocular witnesses P.Ws.1 and 2 also gave a graphic account of the occurrence from A to Z, inclusive of how accused 1 and 3 sustained injuries on their persons during the course of the occurrence. The version, as projected in the earliest information, Ex.P-1 is the very same version unfolded by them during the course of trial without any contradiction whatever relatable to origin, genesis of the occurrence, overt acts of various accused, weapons used by them, perch or the seat of the injuries as a result of the attack and what not. Despite hurling surging waves of volleys of questions to them during the course of cross-examination, they admirably stood as a rock without in the least affected, in the sense of not causing any damage to the case of the prosecution. Learned counsel, obviously taking notice of such a solid testimony of theirs, resorted to mount an attack on their evidence by using his glib tongue in a frantic but in vain bid to make it appear that such a testimony projecting a pictures que presentation of the occurrence in minute details without a little bit of contradiction could not but be anyone other than that of the resultant product of a tutored or tailored version to suit the exigencies of the prosecution without really reflecting the real state of affairs. 17. 17. Learned counsel for the appellants-accused realising the effect produced by the ocular witnesses in enhancing the credibility of the case of the prosecution would, somehow or other, make an attempt to dislodge their testimony and in that process, what he would submit is that the medical opinion available on record is directly in conflict with the testimony of the ocular witnesses as respects the manner of causation of injury on the head of the deceased by accused 1 and above all, the theory of the defence gets ample corroborative support from the medical evidence and in such state of affairs, he would say, no reliance, much less safe reliance, could be placed upon the ocular testimony for fastening or mulcting criminal liability upon the accused for any offence whatever. 18. Before delving deep into the discussion of the evidence on this aspect of the matter, we propose to profitably refer to certain precedents emerging from the Apex Court serving as a guidance in solving the tangle posed in the instant case. .19. In Maghar Singh v. State of Punjab, 1987 S. C. C. (Crl.) 403, a Bench of the Apex Court, consisting of Their Lordships G.L.Oza and M.M.Dutt, JJ., while considering mere probability stated by doctor, if inconsistent with medical evidence, expressed in paragraph 7 (at page 405) thus: .“As regards the medical evidence which was read over by the learned counsel appearing for the appellant before us, it clearly goes to show that in cross-examination, the doctor only gave a probability of those injuries 1 to 12 and said that they could be the result of either two shots or even more than two shots. But the evidence of eyewitnesses clearly showed that there were two shots. The evidence of the doctor, if carefully read, clearly goes to show that injuries one to ten could be caused by shot and injury 11 could be caused by another shot. The description of injury 12 as has been given in the postmortem report and the evidence of the doctor discloses that it could not be said to be an injury independently of a shot fired but either could be caused by stray pellet or even could be on account of fall when the injured fell on the ground as a result of the first shot which resulted in injuries one to ten. Having gone through the evidence of the doctor, it is clear that the evidence could not be said to be inconsistent with the evidence of eye witnesses. What was said to be inconsistent was only a mere probability, which was indicated by the doctor about which, the doctor himself was not very sure.” 20. In Chimanbhai Ukabhai v. State of Gujarat, 1983 Crl.L.J. 822, one Solanki Chimanbhai Ukabhai was prosecuted for the murder of Manorbhai Veribhai. .(a) The prosecution in proof of the charge of murder as against the accused examined three witnesses, who were stated to have been present in the scene and had the fortuitous opportunity of witnessing the occurrence. Two of them were closely related to the deceased, as being the wife and the grand-daughter and the other a neighbour. The attack by the defence on those witnesses was that they tried to improve their case from stage to stage and they were interested witnesses. The further verbal attack that was made was that the medical evidence belied the prosecution case. (b) Learned Sessions Judge, who tried the case, came to the conclusion that he prosecution failed to bring home the charge of murder against the accused. The principal reason which weighed with learned Sessions Judge, in rendering the verdict of acquittal of the accused was that one of the injuries found on the person of the deceased was of such a nature that it could not have been caused by a spear, and under the circumstances, the medical evidence not only failed to support the case of the prosecution, but rather ran counter to the prosecution case. In view of the medical report and medical evidence, learned Sessions Judge did not think it safe to rely on the testimony of the eye witnesses. Besides he found, as contended by the defence, that those witnesses tried to improve the case from stage to stage and that they were interested witnesses. .(c) Against the judgment of learned Sessions Judge, the State of Gujarat went up in appeal and the High Court, in turn, set aside the order of acquittal, convicted the appellant-accused under Sec.302, I.P.C. sentenced him to imprisonment for life. .(c) Against the judgment of learned Sessions Judge, the State of Gujarat went up in appeal and the High Court, in turn, set aside the order of acquittal, convicted the appellant-accused under Sec.302, I.P.C. sentenced him to imprisonment for life. The High Court, while doing so, recorded a finding that it would be improper to discard the testimony of the eye witnesses, if it was otherwise satisfactory, on the simple ground that the medical testimony was in conflict with the testimony of the witnesses, in so far as they depose to the injuries on the deceased, having been caused by a spear and preferred to rely on the testimony of the eye witnesses in preference to the evidence of the doctor by holding that those eye witnesses were possible witnesses and their presence was quite natural. .(d) The matter had further been agitated before the Supreme Court and the Bench consisting of Their Lordship D.A.Desai and R.B.Misra, JJ, while dismissing the appeal and confirming the conviction and sentence, expressed in paragraph 12 (at page 825), which is reflected as below: ‘“Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatever of injuries taking place in the manner alleged by eye witnesses, the testimony of the eye witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.” 21. In State of U.P.V. Krishna Gopal, 1989 Crl.L.J. 288, a Bench of the Supreme Court consisting of A.P. Sen and M.N.Venkatachaliah, JJ., while considering the appreciation of evidence of the eye witnesses in the light of the medical opinion, said in paragraph 13 (at page 295) thus: “It is trite that where the eye witnesses’ account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bantham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Witnesses, as Bantham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eye witnesses’ account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit-worthy; consistency with the undisputed facts the ‘credit’ of the witnesses; their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.” 22. In the light of the principles evolved by the Apex Court, as above, we endeavour to sift and analyse the ocular and the medical testimony available on record. The positive evidence of P.Ws.1 and 2, the ocular witnesses is that accused 1 inflicted a cut on the head of the deceased by means of an aruval, M.O.2. The doctor, P.W.9, who conducted the autopsy and issued Ex.P-9 post-mortem certificate, found on the person of the deceased, the following injuries: “1. An incised wound 3 cm. x 2 cm. x 6 cm. Present over right inguinal region: 2. A lacerated wound 5 cm. x 2 cm. x bone deep present over the middle of scalp on parietal region; 3. A lacerated wound 1 cm. x 1/2 cm. x 1/2 cm. Present over the back of right elbow.” Of the three injuries, as described above, injury No.2 is traceable to the head of the deceased and the description of the injury reveals that it is a lacerated injury with bone deep present on the middle of the scalp on parietal region. The doctor P.W.9 stated in chief, “Injury No.2 is possible by M.O.2.” He would further stated in cross-examination, “Injury No.2 cannot be caused by the sharp edged middle portion of M.O.2.” Basing on this solitary answer, learned counsel for the defence would make a hullabaloo and much fuss that the medical testimony is in direct conflict with the testimony of the ocular witnesses, thereby discrediting their version and therefore, no safe reliance could be placed upon their testimony. The question is whether there is indeed any violent conflict. 23. The question is whether there is indeed any violent conflict. 23. We are of the view that there is no such violent conflict and this will be evident if the facts and circumstances of the case are analysed with a little bit of imagination and vista-vision of how the overt acts of human agencies resulting in the causation of injuries to the victims-human beings by means of a weapon in a trice in the process of mounting of an attack get embossed in the mind of the spectator-witnesses-placed in an atmosphere surcharged with tension and emotion-whose mental make up, memory, and powers of perception very depending upon the cultural background and heritage, from which he emerges. P.Ws.1 and 2 are after all rustic villagers engaged in agricultural operations and their powers of perception and memory cannot at all be compared to a person brought up in a posh and civilised atmosphere. They, of course, in fact deposed that accused 1 inflicted a cut with M.0.2aruval on the head of the deceased. If the blade portion of M.O.2, thai is the cutting edge, had come into contact with, the head of the deceased, it is pretty certain that an incised injury could have been caused. If in the process of inflicting a cut, the blunt portion, that is, back or side portion of the aruval came into contact, an incised injury could not have been caused and if at all a lacerated injury or a contusion could alone have been caused. The airing of such an opinion is nothing but the resultant product of judicial experience in handling such matters and therefore, no authority need be referred to for such a proposition, inasmuch as such a proposition is reflecting the rudimentary canon of medical jurisprudence. The authority, if any, needed, the relevant passage under the captain "lacerated wounds’ occurring at page 219 of Modi’s Text Book of Medical Jurisprudence and Toxicology, Thirteenth Edition, may be referred to: "Lacerated wounds: Those are produced by blows from blunt objects and missiles, by violent falls on sharp and hard projecting surfaces, by machinery and railway accidents, by the wheels of a vehicle by the claws, teeth or horns of animals and by projecting nails. These wounds do not generally correspond in shape or size to the weapon producing them. Their edges are torn, jagged, irregular and swollen or contused. These wounds do not generally correspond in shape or size to the weapon producing them. Their edges are torn, jagged, irregular and swollen or contused. The tissues are torn and the skin beyond the seal of injury is ecchymosed and the underlying bones are likely to be fractured, while the internal organs may be injured. Foreign bodies, such as earth, grease, machine oil, cinders, hair, fibres of clothing, etc, are frequently found in the wounds. When produced by a blunt weapon, such as a club (lathi), crowbar, stone, brick etc., a lacerated wound is usually accompanied by a considerable amount of bruising of the surrounding and underlying tissues, and has inverted and irregular edges. When a heavy weight like a wheel of a heavy cart or a truck passes over any extremity, it tears the skin and crushes the muscles and soft parts beneath it, releasing considerable blood and fat in them. Crush syndrome or fat emboli may occasionally follow. Haemorrhage in lacerated wounds is, as a rule, not extensive owing to the fact that the arteries are not cut evenly, but are torn across irregularly so as to facilitate clotting of the blood. In lacerated wounds of the scalp the temporal arteries often spurt as freely and forcefully as when cut cleanly. These arteries being firmly bound are unable to contract, and may, therefore, spurt and continue to bleed for a long time......" 24. It is not as if an aruval like M.O.2 can cause only incised wounds and other wounds such as lacerated injuries, contusions could not at all be caused. All these types of injuries could be caused by such a weapon and the causation of the type of injury depends upon the portion of such a weapon coming into contact with the human body, in the process of mounting of an attack. It cannot at all always be presumed that if a cut is given with a weapon like an aruval, the resultant injury should always be an incised wound, but it may be either a contusion or a laceration. The reason is rather obvious. 25. The victim of attack is a human being in flesh and bloOd and not a dead one. The instinct of self-preservation is always there in the human being. The reason is rather obvious. 25. The victim of attack is a human being in flesh and bloOd and not a dead one. The instinct of self-preservation is always there in the human being. The victim, in the process of attack, slides and avoids the attack by warding off in the best of fashion possible, in a bid to save himself from the perilous consequences to be ensued. In such a process, the injury of the description intended by the assailant could not be caused. This apart, the manner of holding the weapon by the assailant at the time of impact will also have a bearing on the description of the injuries to be caused on the victim. 26. In the case on hand, the testimony of the ocular witnesses reveals that the victim-deceased at the time of attack, obviously daunted by the instinct of self-preservation warded off the attack emerging from his assailants-accused 1 to 3 and in that process, he would have been moving higher and hither and therefore, it cannot be stated that the possibility or plausibility of the blunt portion of M.O.2 aruval coming into contact with the head of the deceased causing lacerated injury of the description mentioned by the doctor in the post-mortem certificate cannot at all be ruled out of consideration, inasmuch as the doctor P.W.9 had stated in chief-examination that injury No.2 is possible by M.O.2. Thus, it cannot be stated that the medical evidence available on record completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by the ocular witnesses. 27. It is the case of the prosecution that both the prosecution party as well as accused party got injured in the occurrence. Of the two persons injured from the prosecution party, the deceased succumbed to the injuries while P.W.1 escaped the jaws of death. On the side of the accused, accused 1 and 3 sustained injuries. The prosecution however sought to explain as to how accused 1 and 3 sustained injuries in the course of the occurrence. It is stated that in the process of mounting of an attack by accused 1 and 3 herein, the deceased, in turn warded off such an attack and the beatings aimed by accused 2 on the head of the deceased fell on the head and face of accused land 3 injuring them. It is stated that in the process of mounting of an attack by accused 1 and 3 herein, the deceased, in turn warded off such an attack and the beatings aimed by accused 2 on the head of the deceased fell on the head and face of accused land 3 injuring them. The defence on the other hand came forward with the theory as to the genesis and origin of the occurrence leading to the sustaining of the injuries by the prosecution as well as accused party. Such a defence theory needs evaluation on the basis of the prosecution evidence tendered in the case. 28. Before actually entering into the arena of discussion on this aspect of the matter, we rather feel impelled to make a useful reference to the salutary principles valued by the Apex Court in evolving the effect or the consequence to be flowing from the explanation or otherwise of the inju-ries sustained by the accused in the same transaction. 29. In Lakshmi Singh v. State of Bihar, 1976Crl.L.J. 1736, the Bench of the Supreme Court consisting of Their Lordships P.N.Bhagwati and S.Murtaza Fasal Ali, JJ., dealing with non-explanation by the prosecution of the injuries sustained by the accused in the course of the occurrence, said in paragraph 11 (at page 1742) thus: "It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstances from which the court can draw the following inference: .(1) that the prosecution has suppressed the genesis and the origin or the occurrence ana has thus not presented the true version: .(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; .(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which completes in probability with that of the prosecution one." 30. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which completes in probability with that of the prosecution one." 30. In Hare Krishna Singh v. State of Bihar, A.I.R. 1988 S.C. 863, the Bench consisting of Murari Mohan Dutt and K.Jagannatha Shetty, JJ., had an occasion to consider whether it is an invariable proposition of law that the prosecution is obliged to explain the injuries sustained by the accused in the same occurrence and whether failure of the prosecution to so explain the injuries on the person of the accused would mean that the prosecution has suppressed the the truth and also the genesis or origin of the occurrence, and in that context expressed in paragraphs 18 and 20 (at pages 868 and 869) thus: "18..... Upon a conspectus of the decisions mentioned above, we are of the view that the question as to the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. The burden of proving the guilt of the accused is undoubtedly on the prosecution. The accused is not bound to say anything in defence. The prosecution has to prove the guilt of the accused beyond all reasonable doubts. If the witnesses examined on behalf of the prosecution are believed by the court in proof of the guilt of the accused beyond any reasonable doubt, the question of the obligation of the prosecution to explain the injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and in what circumstances injuries have been inflicted on the person of the accused. 19......... When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and in what circumstances injuries have been inflicted on the person of the accused. 19......... 20, All the decisions of this Court which have been referred to and discussed above, show that when the court has believed the prosecution witnesses as convincing and trustworthy, the court overruled tire contention of the accused that as the prosecution had failed to explain the injuries sustained by the accused in the same occurrence, the prosecution case should be disbelieved and the accused should be acquitted. Thus, it is not the law or invariable rule that whenever the accused sustains an injury in the same occurrence, the prosecution has to explain the injuries, failure of which will mean that the prosecution has suppressed the truth and also the origin and genesis of the occurrence." 31. In State of Rajasthan v. Madho, 1991 Crl.L.J. 1343, six persons were put up for trial for commission of offences punishable under Secs.302 and 326/323, I.P.C. Of them four were women-accused, who were acquitted. However, the rest two men-accused/respondents, namely, Madho under Secs.302 and 326, I.P.C. and Krishna under Secs.302 and 323, I.P.C. were convicted and each of them sentenced to imprisonment for life for the murder of one Mangi Lal. The two convicted accused preferred an appeal, which was heard by a Division Bench of the High Court of Rajasthan. The High Court came to the conclusion that the evidence tendered against the convicted accused was full of infirmities and the prosecution version regarding the incident could not be accepted, as the prosecution witnesses had failed to explain injuries sustained by those two accused persons. In that view, the High Court took it, reversed the decision of the trial court and acquitted both the accused persons. In that view, the High Court took it, reversed the decision of the trial court and acquitted both the accused persons. (a) The matter had been further agitated before the Supreme Court and the Bench comprising of their Lordships A.M.Ahmadi, V.Ramaswami and M.Fathima Beevi, JJ., while dismissing the appeal came to consider the question of the prosecution witnesses’ failure to explain the injuries caused to the accused in the same transaction incident and in that contact observed as at page 1345 as under: "If we turn to the injuries sustained by the two respondents which have been set out in paragraph 25 of the trial court judgment, we find that the respondent Krishna had sustained as many as six injuries, five of them on the skull region. The respondent Madho too had sustained six injuries two on the skull region, two on the scapular region, one on the forehead and one on the right index finger. Thus some of the Injuries were on exposed parts of their bodies and we would expect the prosecution witnesses to explain how the two respondents sustained the said injuries. No explanation worth the name is forthcoming. The trial court, however, brushed aside this infirmity by pointing out that in the cross case filed at the behest of the respondent Krishna the evidence disclosed that there was no farsi blow and, therefore, the defence theory was not acceptable. Counsel for the respondents, however, questioned the admissibility of the said evidence. Be that as it may, mere acquittal of the accused (Prosecution side herein) in that case does not render the defence version false. The defence version has to be evaluated on the basis of the prosecution evidence tendered in the present case. The fact remains that both the respondents had sustained serious injuries, Krishna mainly on the skull whereas Madho on the skull as well as scapular region. If the prosecution witnesses shy away from the reality and do not explain the injuries caused to the respondents herein it casts a doubt on the genesis of the prosecution case since the evidence shows that these injuries were sustained in the course of the same incident. It gives the impression that the witnesses are suppressing some part of the incident. It gives the impression that the witnesses are suppressing some part of the incident. The High Court was, therefore, of the opinion that having regard to the fact that they have failed to explain the injuries sustained by the two respondents in the course of the same transaction, the respondents were entitled to the benefit of the doubt as it was hazardous to place implicit reliance on the testimony of the injured P.W.2.... In our view the evaluation of the prosecution evidence by the High Court in the context of the injuries sustained by the two respondents in quite proper and does not call for interference by this Court." 32. An approach may now be made to the facts of the instant case in the backdrop of the principles pronounced by the Supreme Court as referred to above. The theory of the defence is getting revealed by the hurling of questions put in cross-examination to P.W.2 and the statement of accused under Sec.313, Crl.P.C. Even at the outset, we may state that the theory evolved by the defence is not consistent and materially varies. The inconsistency and the material variation may be brought to the surface by actually penning down here the substratum of the two theories. 33. The defence theory suggested through P.W.2 bristles to these: The, deceased and accused 3 grappled with each other and rolled on the ground. At that time, P.W.2 beat accused 3 with stick. Accused 3 slided and avoided the hit. Consequently, it fell on the head of the deceased. Mot-taisami, father of the deceased, stabbed accused 3. But the stay fell on the deceased, as a consequence of accused 3 avoiding the same. Further, Mottais-ami was stated to have caused injuries on the head and face of accused 1 by means of a soori knife. Then P.W.1 and accused 3 grappled with each other and rolled on the ground. In that process, P.W.1 got injured by his coming into contact with glass pieces found strewn on the ground. 34. The further defence theory evolved through the medium of accused 2 in his statement under Sec.313, Crl.P.C. is to the following effect: Accused 1 was initially beaten. Accused 2 came to his rescue. At that time, P.W.1 beat him on his head repeatedly. Accused 2 pushed P.W.1 down. 34. The further defence theory evolved through the medium of accused 2 in his statement under Sec.313, Crl.P.C. is to the following effect: Accused 1 was initially beaten. Accused 2 came to his rescue. At that time, P.W.1 beat him on his head repeatedly. Accused 2 pushed P.W.1 down. As a consequence of such a fall, he got injured by the broken ceramic pieces found strewn on the ground. The deceased and accused 2 grappled and rolled on the ground. P.W.2 beat accused 2 with tholukambu. He avoided the hit, which in turn fell on the deceased. Mottaisami, father of the deceased, attempted to stab accused 2 by means of a soori knife. He avoided the same and consequently that stab fell on the deceased. .35. From the two theories referred to; as above, we may now try to bring out the glaring inconsistencies as well as inherent improbabilities hidden underneath therein. The first theory revealed through the cross-examination of P.W.2 consists of two parts. Under the first part, the deceased and accused. 3 were stated to have grappled with each other and rolled on the ground. P.W.2 was stated to have beaten accused 3 with a stick. Accused 3 was stated to have alluded and avoided the hit, which, in turn was stated to have fallen on the head of the deceased, thereby suggesting that the lacerated injury found on the head of the deceased had been caused by such a beating or hit. No doubt, a lacerated injury of that sort could have been caused by beating with a stick. But the question is whether there is preponderance of probabilities for the causation of the lacerated injury found on the middle of the scalp of parietal region of the deceased by beating him at the time when both of them were rolling on the ground one over the other. The probability for the injury to be caused on the temporal or occipital region is more than an injury to be caused on the middle of the scalp on the parietal region, although the possibility of causation of such an injury could not be ruled out of consideration. The probability for the injury to be caused on the temporal or occipital region is more than an injury to be caused on the middle of the scalp on the parietal region, although the possibility of causation of such an injury could not be ruled out of consideration. The possibility of such an injury being caused may be there, when the assailant takes a standing position ahead of the heads of the persons rolling on the ground and gives a beating on the head by dangling and slashing the stick sideways. 36. The injury on the inguinal region of the deceased is sought to be explained by Mottaisami inflicting a stab on accused 3; but the stab falling on the deceased, as a consequence of accused 3 avoiding the same. We have to recapitulate to our memory at this juncture that such a stab was stated to be given when the deceased and accused 3 were rolling on the ground one over the other. In such,-a process, can we imagine that a stab given will land on the inguinal region, that is, lower part of the abdomen? If one is over the other in the process of rolling in the ground then the lower abdomen portion will not at all be exposed for a stab to be mounted therein. As such, there is bleak possibility of the deceased getting injury on the inguinal region in the manner as suggested by the defence. 37. The injuries stated to have been received by accused-1 at the hands of Mottaisami by means of a soori knife on his face and head were not at all put to the test of probability by putting questions to the doctor whilst he was in the box. .38. The Second part seeks to explain the injuries sustained by P.W.1. According to the defence, P.W.1 and accused grappled with each other and rolled on the ground and in that process, P.W.1 got injured by his coming into contact with glass pieces strewn on the ground. The remote or bleak probability of such a theory can very well be inferred from the nature of the injuries sustained by P.W.1 and accused 3. 39. The remote or bleak probability of such a theory can very well be inferred from the nature of the injuries sustained by P.W.1 and accused 3. 39. The doctor P.W.7, who examined P.W.1 and issued wound certificate Ex.P-5 to him, found on him the injuries of the following description: “(1)An injury about 2 1/2" x 1/2"x 3/4" over the left side of the chest near the left shoulder involving the skin and deeper muscles. .(2) A cut injury about 3/4 cm. x 3/4 cm. x 1/2 cm. over the right shoulder anterior aspect. .(3) An incised wound 1 1/2 cm. x 1/2 cm. over the right fore-arm near the wrist. .(4) An incised injury about 3/4 cm. x 1/4 cm. over the right thumb. .(5) A cut injury about 2 1/2 cm. x 1/2 cm. x 3/4 cm. over the left little finger over the palmer aspect exposing the deeper tendon; .(6) An incised wound about 3/4 cm. x 1/4 cm. over the left dorsum of hand. .(7) Incised wound about 2 cm. x 1/2 cm. x 1/2 cm. over the right parietal region. 40. The doctor P.W.9who examined accused 3 and issued Ex.P-7 wound certificate found on him the injuries of the following description: .(1) A lacerated wound 3 cm. x 1/2 cm. x 1/2 cm. over the middle of scalp on parietal region. .(2) An abrasion 2 cm. x 1 cm. x over the front of left knee. .(3) An abrasion 3 cm. x 1 cm. x over the front of the right knee. 41. From the injuries as described above we are unable to find any incised or cut injury on the person of accused 3. There is of course a lacerated injury on the middle of the scalp of parietal region besides two abrasions-one on the front of left knee and the other on the front of right knee. On the other hand, all the seven injuries found on the body of P.W.1 are either cut or incised injuries. It is not as if P.W.1 alone was rolling on the ground where glass pieces were found strewn. The pity is as stated earlier both of them one over the other rolled on the ground strewn with glass pieces. It cannot be anything but magic for accused 3 to have not sustained any injury of the description found on the person of P.W.1. The pity is as stated earlier both of them one over the other rolled on the ground strewn with glass pieces. It cannot be anything but magic for accused 3 to have not sustained any injury of the description found on the person of P.W.1. Nothing is elicited from the doctor, P.W.9 who examined accused 3 as to the injuries found on his person having been caused by his coming into contact with glass pieces. The doctor P.W.7 who examined P.W.1 would state in chief examination that all the injuries found on P.W.1 are possible by knife and aruval. He would of course state in cross examination that by coming into contact several times with glass pieces all those injuries are possible. It is to be noted here that the prosecution amply explained as to how accused 3 happened to receive the injury on his head through the clinching testimony of P.Ws.1 and 2, ably supported by the medical evidence on record. Pertinent it is to note here that accused 3 himself stated to the doctor P.W.9 at the time of his examination that he sustained injuries with assault with tholukambu (stick). 42. We may now proceed to consider the second theory of the defence set up during the statement of accused 2 under Sec.313, Crl.P.C. In so bald a fashion it was stated that accused 1 was beaten without any sort of an indication by whom he was beaten. Accused 2 was stated to have gone to his rescue. At that time P.W.1 was stated to have beaten him on his head repeatedly. Accused 2 was stated to have pushed P.W.1 down. As a consequence of such a fall he got injured by the broken ceramic pieces found strewn on the ground. The sordid fact is that accused 2 did not at all sustain even a scathing of an injury on his person. The absence of any injury on his person falsifies the theory of his being beaten up by P.W.1 repeatedly. 43. As already stated P.W.1 sustained seven injuries-cut and incised-on various portions of his body. Nothing is elicited from the doctor as to the possibility of P.W.1 sustaining of the injuries on his person by a single fall. The absence of any injury on his person falsifies the theory of his being beaten up by P.W.1 repeatedly. 43. As already stated P.W.1 sustained seven injuries-cut and incised-on various portions of his body. Nothing is elicited from the doctor as to the possibility of P.W.1 sustaining of the injuries on his person by a single fall. From the very nature of the injuries sustained by P.W.1 even assuming that all the injuries could have been caused by his coming into contact with ceramic pieces it is pretty certain that there could have been more falls than one and such is not the case of the defence. 44. The injuries on the person of the deceased are also sought to be explained in a different way. The deceased and accused 2 were stated to have rolled on the ground grappling with each other. At that juncture P.W.2 beat accused 2 with tholukambu. He avoided the hit which in turn fell on the deceased. Mottaisami, father of the deceased attempted to stab accused 2 by means of a soori knife. He avoided the same. Consequently that slab fell on the deceased. The defence appeared to have trotted out this theory, obviously realising that the injury on the inguinal region could not have been caused in the process of rolling on the ground with one over the other as put forward in the other theory. The startling factor is that accused 1 and 3did not at all state anything in their statements under Sec.313, Crl.P.C. about the theory of the defence. It is thus clear that despite the defence trying its level best to explain the injuries on the person of P.W.1 and the deceased as well as accused 1 and 3 they faced colossal failure in not establishing such a theory by preponderance of probabilities. But on the other hand the prosecution discharged its burden and succeeded in proving beyond doubt the manner and mode of causation of injuries on the person of P.W.1, the deceased and accused 1 and 3 as well by clinching ocular testimony of P.Ws.1 and 2 deriving the solidified support from the medical evidence available on record. 45. But on the other hand the prosecution discharged its burden and succeeded in proving beyond doubt the manner and mode of causation of injuries on the person of P.W.1, the deceased and accused 1 and 3 as well by clinching ocular testimony of P.Ws.1 and 2 deriving the solidified support from the medical evidence available on record. 45. With all vehemence learned counsel for the appellants accused would submit that the investigating police personnel had arrived at the scene within a short time after the occurrence which occurred at 11.30 a.m. that they manipulated and fabricated a version after deep deliberation and consultation from interested quarters suiting to the exigencies of the case of the prosecution and that version so manipulated and fabricated had been projected in Ex.P-1 as if the same had been laid before the police station by P.W.1 on his own accord at 2.30 p.m. In elaboration he would submit that that perhaps was the reason of the version as projected in Ex.P-1 contains all the minute details of the case of the prosecution from the beginning to the end inclusive of the explanation for the injuries found on the person of the accused and such a version found embossed therein had been given a picturesque painting by the ocular witnesses P.Ws.1 and 2 without any sort of a discrepancy whatever obviously as a result of tutoring and in such state of affairs it cannot be stated that Ex.P-1 first information is a document free from suspicion and above reproach. 46. The arrival of the police at the scene a short while after the occurrence at 11.30 a.m. is sought to be established by the defence by the misconstruction and misreading of a stray answer elicited during the course of the cross-examination of the mahazar witness P.W.6. We feel that such a misconstruction and misreading would get fully exposed if English transaction of the entirety of the evidence of P.W.6 which consists of about 15 to 16 lines in Tamil is penned down here: “Chief-examination: I reside at Lakshmipu-ram on 11. 1984 at 4.45 p.m., Sub Inspector of Police, Inspector came to the scene village. After inspection of the scene, observation mahazar, Ex.P-2 had been prepared. Myself and one Krishnaswami attested the same. At 5.45 p.m. blood-stained earth, M.O.6 and sample earth M.O.7 hud been seized under Ex.P-3 mahazar. We attested the same. 1984 at 4.45 p.m., Sub Inspector of Police, Inspector came to the scene village. After inspection of the scene, observation mahazar, Ex.P-2 had been prepared. Myself and one Krishnaswami attested the same. At 5.45 p.m. blood-stained earth, M.O.6 and sample earth M.O.7 hud been seized under Ex.P-3 mahazar. We attested the same. On the next day at 6.30 p.m. the Inspector and his party inspected the common well situate on the southeast of the village and prepared Ex.P-4 observation mahazar. We attested the same also. Cross-examination: When the Inspector inspected the scene, I was standing on the west of the house of Rose (deceased). I went to the spot at about 1.30 p.m. Before that I had been to my garden. When the Inspector inspected the scene, the Sub Inspector was present. When I saw, the dead body of the deceased was on the pial of his house. The shirt and dhoti of the deceased were all found stained with blood. There was no blood on the pial. There was blood in front of the house of Mottaisami 4 or 5 feet southwest of its threshold. Re-examination: Nil.” 47. From the evidence, as extracted above, it appears the defence hurled a question during the course of cross-examination as to where P.W.6 was standing. For that he appeared to have given an answer that he was standing on the west of the house of Bose. The next question that followed was what was the time then. The time was then about 1.30 p.m., was the answer. The further question was as to where he had previously been. The answer was that he had been to his garden. The questions and answers elicited in such a chronological order suggest without any room for doubt that P.W.6 went near the house of the deceased at 1.30 p;m. arid since then he was standing on the west of the house of Bose. Hedid not all suggestas to whether the investigating police personnel either the Sub-Inspector or the Inspector had arrived at the scene even at 1.30 p.m. In such a context, the evidence given by him in cross-examination, if read with his chief-examination, would point out in no uncertain terms that the polic5e party arrived at the scene only at 4.45 p.m. and not earlier to that. In such state of affairs, the bombastic bomb-shell of manipulation and fabrication of Ex.P-1 after deep deliberation, after the arrival of the police in the scene immediately after the occurrence suiting to the exigencies of the case of the prosecution must have to explode with consequences flowing therefrom. 48. For the reasons as above, we are of the view that the prosecution established beyond any reasonable doubt the individual overt acts of accused 1 to 3, as relatable to the causation of the injuries to the deceased, which resulted in his instantaneous death on the spot as well to the murderous assault mounted on P.W.1, who somehow or other escaped the jaws of death. 49. Relevant at this juncture, we feel to refer to the express and explicit observations of the Apex Court as to criminal case suffering from insufficient forensic appreciation resulting in unmerited acquittals on the ground of benefit of reasonable doubt, making a mockery of the administration of criminal justice in certain decisions of the Supreme Court. 50. In Shivaji Sahebrao Bobade v. State of Maharashtra, (1974)1 S.C.R. 489 , Their Lordships of the Supreme Court P Jaganmohan Reddy, H.R.Khanna and V.R.Krishna Iyer, JJ., while reminding themselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation, said at pages 492 and 493 thus: "The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand special emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs into the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent party shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent party shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light-heartedly as a learned author, Clanville Williams in ‘Proof of Guilt’ has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished, if unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted ‘persons’ and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent......." In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing enhance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents." 51. In State of U.P. v. Krishna Gopal, 1989 Crl.L.J. 288. Their Lordships of the Supreme Court A.P. Sen and M.N.Venkatachaliah, JJ. while dealing with the aspect of the matter relatable to proof beyond reasonable doubt, observed at paragraph 13 (at pages 295 and 296) thus: "A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to ‘Proof is an exercise particular to each case..... Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt aged upon reason and common sense.....The concepts of probability, and the degrees of it cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained institutions of the Judge. While the protection given by the Criminal Process to the accused persons is not to be eroded, at the same time, uninformed legit-imisation of trivialities would make a mockery of administration of criminal justice." 52. The next question that crops up for consideration is as to what is the offence committed by the individual accused 1 to 3 in the facts and circumstances of the case. No individual charge for any specific offence had been framed and what all charges that were framed on each of them during trial were under Secs.302 read with 34, I.P.C. and under Secs.307 read with 34, I.P.C 53. Sec.34, I.P.C. prescribes, "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone." The section contemplates the acts where more persons than one shared in the doing of the act and it is necessary to bear in mind the definition of act’ given in Sec.33 according to which, the word.‘act’ denotes as well as series of acts as a single act. Thus, the term ‘act’ contemplates a ‘series of acts’ done by several persons, some perhaps by one of those persons and some by another; but all in pursuance of a common intention, resulting in something for which an individual would be punishable, if it were all done by himself alone. Thus, the term ‘act’ contemplates a ‘series of acts’ done by several persons, some perhaps by one of those persons and some by another; but all in pursuance of a common intention, resulting in something for which an individual would be punishable, if it were all done by himself alone. That is, in a criminal offence, ‘common intention’ is an intention to commit, the crime actually committed and each accused person can be convicted of that crime only if he has participated in the ‘common intention’. Some or similar intention must not be confused with common intention and the partition which divides the words is often very thin. The distinction nevertheless is real and substantial and if overlooked will result in miscar-riage of justice. ‘Common intention’ implies a prearranged plan and it is difficult, if not impossible, to procure direct evidence to prove the intention of an individual and in most cases, it has to be inferred from his act or conduct or other relevant circumstances of the case. It is but necessary for us to emphasise this juncture, in a bid to remove delusion or obsession commonly prevailing in certain quarters that if that act attributable to one of the participants in the occurrence is of minimal nature, such a participant could not be vicariously held liable for the actual result produced by the cumulative effect of the various acts attributable to all the participants, resulting the causation of injuries to the victim. 54. 54. The expressions ‘Criminal act’ and ‘that act’ and the relative pronoun ‘it’ which represents ‘the act’ occurring in Sec.34, I.P.C, if interpreted and construed in a broad spectrum analysis, it would emerge that the expressions, ‘that act’ and ‘the act’ in the latter part of the section must include the whole action covered by a ‘criminal act’ in the first part, because they refer to ‘it’ and in the light of such interpretation and construction it goes without saying that however minimal an act of a participant in the occurrence may be, he will be held liable for the result produced by the cumulative effect of the act attributable to all participants in the occurrence, as if the result produced is directly attributable to the act of the individual participants in the occurrence, provided the intention of each one of them is mode known to the rest of them and shared by them in the doing of the act. 55. We may now divert our attention to the facts of the instant case as to the feasibility or otherwise of mulcting criminal liability upon accused 1 to 3 invoking the salient provisions adumbrated under Sec.34, I.P.C. The presence of all the accused in the scene and their participation in the occurrence, which had been clinchingly spoken to by the ocular witnesses, P.Ws.1 and 2, had, as already stated, commended acceptance at our hands. Their presence and participation is further reinforced by the very defence resorted to be taken by the accused during the course of trial, in the sense of admitting their presence in the scene and trying to explain the origin and genesis of the occurrence. Can we, in the facts and circumstances of the case, unerringly and without any sort of a hesitation come to the conclusion that the acts perpetrated by accused 1 to 3 relatable to the deceased as well as P.W.1 were done in furtherance of common intention of all of them to murder the deceased and to make an attempt to commit the murder of P.W.1? 56. It is not as if the occurrence took place on the relevant day all of a sudden. 56. It is not as if the occurrence took place on the relevant day all of a sudden. Two days prior to the occurrence, while the deceased and P.W.1 were making preparations for laying the bed near the well for installation of an electric motor, a wordy altercation ensued between the deceased and P.W.1 on the one hand and accused 1 on the other, which but for the good Samaritan efforts of P.W.3 could have resulted in an untoward incident. Though P.W.3 was successful in averting any course of a clash between them, then, yet, he could not restrain accused 1 giving vent to his anger directed towards the deceased and P.W.1. He could proclaim in such an assertive fashion that their lives could not have been spared for them for the fruition of the process of the installation of the motor near the well, thereby impliedly stating that in all probabilities, they would meet their fateful end before the proposed installation of the electric motor. Though the deceased and P.W.1 slighted the words of anger of accused 1, in a casual and cavalier fashion, yet, accused 1 somehow or other wanted to translate his expression into action. There was a lull in the activities of the deceased and P.W.1 for two days in not doing anything towards the installation of the electric motor. 57. On the morning of the day of the occurrence, the deceased and P.W.1 appeared to have taken the pipes and other accessories to the field and after leaving them there, they returned to the house for taking the electric motor. When they were approaching Chinna Mottaisamy’s house, accused 1 to 3 arming with weapons emerged to the scene. Accused 1 was armed with M.O.2 aruval; accused 2 with M.O.3 stick and accused 3 with M.O.2 soori kathi. It is not as if accused 1 to 3 were not having any sort of a connection with the other, and they are closely related to each other, accused 1 and 2 being the brothers and accused 3 being the son of accused 2. The moment they saw the deceased and P.W.1 near Chinna Mottaisamy’s house accused 1 proclaimed in a loud voice instigating accused 2 and 3 to kill them. The moment they saw the deceased and P.W.1 near Chinna Mottaisamy’s house accused 1 proclaimed in a loud voice instigating accused 2 and 3 to kill them. Immediately thereafter, accused 1 to 3 mounted an attack on the deceased as well as P.W.1, with the weapons which they were having in their hands, thereby inflicting injuries on the various portions of their Vody. 58. The doctor P.W.9, who issued Ex.P-9 postmortem certificate found on the deceased three injuries of the description as mentioned in paragraph 22 supra. Injury No.1 is attributable to accused 3 while injury Nos.2 and 3 are attributable to accused 1 and 2 respectively. The doctor also expressed an opinion that the injuries 1 and 2 with corresponding internal injuries are necessarily fatal and that as a matter of fact, the victim-deceased died on the spot instantaneously. 59. The doctor P.W.7, who examined P.W.1 and issued Ex.P-5 wound certificate found on him, seven injuries of the description as mentioned in paragraph 39 supra. Injury Nos.l,3,4,6 and 7 are attributable to accused 3 while injury Nos.2 and 5 .are attributable to accused 1. Though accused 2 made repeated attempts to beat P.W.1 on his head by means of M.O.3 stick, such an attempt faced colossal failure in inflicting any injury on his head. But those hits fell accidentally on the head and face of accused 1 and 3in the process of the attack. 60. It is not as if all the accused emerged to the scene from different directions at different times without being armed. The sordid fact is that all of them, as stated earlier came to the scene arming with weapons of offences at one and the same time and from the same direction. All of them coming together and arming with weapons at one and the same time at or about the time of the occurrence is of single importance in the facts and circumstances of the case. All of them coming together and arming with weapons at one and the same time at or about the time of the occurrence is of single importance in the facts and circumstances of the case. Their coming together in such a fashion at a time when the deceased and P.W.1 were returning home, after leaving the pipes and accessories in the field for taking the electric motor is a possible indication of accused 1 to 3, pursuant to a prior concert they had had previous to the emergence to the scene, sensing their movements to do away with the deceased and P.W.1 and the vocal expression given by accused 1 to murder the deceased and P.W.1 immediately after their being sighted and all of them revelling in action of infliction of injuries with the weapons they possessed on the person of the deceased as well as P.W.1 further reinforces their common intention to do away with the deceased and P.W.1. 61. Thus, taking into consideration the conspectus of the sequel of events that had happened a few days prior to the occurrence as well as the incidents, happenings and surrounding circumstances, at or about the time of the occurrence, namely, the wordy altercation that took place on 11. 61. Thus, taking into consideration the conspectus of the sequel of events that had happened a few days prior to the occurrence as well as the incidents, happenings and surrounding circumstances, at or about the time of the occurrence, namely, the wordy altercation that took place on 11. 1984 near the well between the deceased and P.W.1 on the one hand and accused 1 on the other leading to accused 1 vowing to finish them off before the proposed installation of the electric motor, all the accused arming themselves emerging to the scene together at one and the same time and from the same direction, sensing the movements of the deceased and P.W.1, their close relationship to each other; accused giving vocal expression by way of instigation to murder the deceased and P.W.1, all of them immediately rising in revolt and mounting an attack with the weapons they possessed on the person of the deceased as well as P.W.1 leading to the instantaneous death of the deceased on the spot and P.W.1 escaping the jaws of death, despite such murderous assault, we are of the view that the prosecution proved beyond reasonable doubt that the murder of the deceased and causing certain injuries on the person of P.W.1 had all been effectuated by accused 1 to 3 pursuant to a design or plan to commit the murder of the deceased as well as to make an attempt to commit the murder of P.W.1 and in this view of the matter, the conviction of the appellants-accused 1 to 3 under Sec.302 read with 34, I.P.C. and Sec.30 read with 34, I.P.C. by the court below cannot at all be stated to be not sustainable in law. 62. As respects the sentence, the court below has no other alternative except to impose the sentence of imprisonment for life on each of the appellants-accused 1 to 3 for the offence under Sec.302 read with 34, I.P.C. and accordingly imposed such a sentence. 63. 62. As respects the sentence, the court below has no other alternative except to impose the sentence of imprisonment for life on each of the appellants-accused 1 to 3 for the offence under Sec.302 read with 34, I.P.C. and accordingly imposed such a sentence. 63. Since P.W.1 sustained injuries as a result of the onslaught of attack by accused 1 and 3 as already found, and such injuries had been inflicted with necessary and requisite mens rea, the act of all the accused clearly falls under the latter part of Sec.307, I.P.C. under which the offender shall be liable either to imprisonment for life, or to such punishment as is mentioned in the first part, which may extend to ten years. As such, the sentence of rigorous imprisonment for seven years, as imposed by the court below on each of the appellants-accused 1 to 3 for the offence under Secs.307 read with 34, I.P.C., cannot at all be stated to be unduly severe or harsh calling for interference. 64. In the result, the appeal is dismissed, confirming the conviction and sentence as imposed upon the appellants-accused 1 to 3 for various offences by the court below.