Judgment : K. M. NATARAJAN, J, J. ( 1 ) THE accused, six in number, in S. C. No. 133 of 1985 on the file of the Principal Sessions Judge, Salem, have preferred this appeal challenging the legality and correctness of the various convictions and sentences as detailed below: There were tried for the above charges on the allegation that on 17/3/1985 at about 8 A. M. at Chettipatti within the jurisdiction of Kumarapalayam Police Station, all the accused formed themselves into an unlawful assembly and among them, accused 1,2 and 6 were armed with spades. In pursuance of the common intention, the fifth accused caught hold of the right hand of the deceased Palanisami and the sixth accused caught hold of the left hand; accused 3 and 4 caught hold of the legs, and accused 1 and 2 beat the deceased with the spade handle and as a result of the same he died later at the Government Hospital, at 11. 20 P. M. During the course of the same transaction the sixth accused beat P. W. 1 with spade and she sustained simple injury. To substantiate the above charges, the prosecution examined P. Ws. 1 to 13, filed Exs. PT to 18 and marked M. Os. 1 to 15. ( 2 ) THE case of the prosecution as revealed from the oral and documentary evidence which is necessary for the disposal of the appeal may be succinctly stated as follows: Accused 5 and 6 and one Kaveri (father of the first accused) are the sons of one Nallathambi. Nallathambi and one Adaikalant (father of the deceased Palanisami) are brothers. There was no partition between them. The second accused is the son of the fifth accused. The third accused is the wife of the sixth accused. The fourth accused is the mother of the first accused and wife of Kaveri. ( 3 ) ABOUT 4 years prior to the occurrence, the deceased Palanisami and his elder brother entered into an agreement with P. W. 11 to purchase the property of P. W. 11 and advanced a sum of Rs. 7,000/ -. But, subsequently, during the subsistence of the said agreement, the first accused father Kaveri and also accused 6 obtained a sale deed in respect of the said land from P. W. 11. 7,000/ -. But, subsequently, during the subsistence of the said agreement, the first accused father Kaveri and also accused 6 obtained a sale deed in respect of the said land from P. W. 11. On account of the same, enmity arose between the family of the deceased and that of the first accused. Accused 5, 6 and Kaveri (father of the first accused) were demanding the deceased that they should be permitted to take water from the common well to the land purchased from P. W. 11 through the land of the deceased, the deceased refused to allow them to take water through the land purchased by him from one Kandasami. ( 4 ) ON the date of occurrence, namely, on 17/3/1985, Sunday, at about 8 A. M. P. W. 1 and her husband, the deceased Palanisamy, were working in the field purchased from Kandasami. At that time P. W. 1 was having the spade M. O 4 while the deceased was having M. O 5 spade. P. W. 2, wife of the eider brother of the deceased, was attending to the farm work in the adjacent field. P. W. 3 was also attending to the farm work in the adjoining field. P. W. 4, who is the owner of the northern land, was attending to his cattle. At that time, accused 1 2 and 6 each carrying on a spade, came to the land where the deceased was or king and asked the deceased whether he allows them to take water or not, to their land purchased from P. W. 11, to which the deceased said that he would not permit them to take water even if he dies. Accused 3, 4 and 5 also came there at that time and they also joined them. The fifth accused caught hold of the left hand while the sixth accused caught hold of she right hand. Accused 3 and 4 caught hold of the legs family. The first accused beat the deceased with M. O. 2 spade handle on the left side of the head while the second accused beat him with M. O. 1 spade on the right side of the head. When P. W. lraised a hue and cry that her husband is being beaten and ran towards her husband, the sixth accused hit her with M. O. 3 spade on her chest and pushed her down. When P. W. lraised a hue and cry that her husband is being beaten and ran towards her husband, the sixth accused hit her with M. O. 3 spade on her chest and pushed her down. She fell down face upwards. P. Ws. 2, 3 and 4 who came there on hearing the noise, witnessed the occurrence. Accused 1 and 2 threatened them that if they come pear, they would face the same consequence. Thereupon all the accused ran away with the spades towards west. There was bleeding from the nose and ears of the injured Palanisami. P. W. 1 asked her children to bring M. O. 6 cot and Palanisami was placed on the cot after spreading M. O. 7 bed sheet there. Nallathambi elder brother of Palanisami, brought a van in which Palanisami was taken to Kumarapalayam Government Hospital: ( 5 ) P. W. 5, Assistant Surgeon, Government Hospital, Kumarapalayam, examined Palanisamy at II A. M. and then he was unconscious and there was difficulty in breathing. While he was examining him, he expired at about 11. 20 A. M. He sent death intimation Ex. P4 to the police station. He examined P. W. 1 at 11. 05 A. M. on the same day for certain injuries said to have been caused on the same day and to be due to assault and found on her the following injury: A contusion over the right chest about 2 diameter. He was of the opinion that the said injury is simple in nature and could have been caused by beating with the hand of the spade M. O. 3, Ex. P3 is the wound certificate issued by him. ( 6 ) P. W. 12 is the Head Constable attached to the Kumarapalayam Police Station. On receipt of Ex. P4, he went to the Government Hospital at 12 noon. He noticed the body of Palanisami at the old male ward and he recorded the complaint Ex. P1 from P. W. 1. Thereupon he came to the police station and registered Ex. PT as Crime No. 135 of 1985 under Sections 147, 148,447 and 302 I. P. C. He prepared the First Information Report Ex. P15 with copies. He sent Ex. P1, P4 and P15 to the Judicial Magistrate, Sankari and copies of Ex. P15 to the higher officials. At 1. Thereupon he came to the police station and registered Ex. PT as Crime No. 135 of 1985 under Sections 147, 148,447 and 302 I. P. C. He prepared the First Information Report Ex. P15 with copies. He sent Ex. P1, P4 and P15 to the Judicial Magistrate, Sankari and copies of Ex. P15 to the higher officials. At 1. 30 P. M. he informed the occurrence to the Inspector P. W. 13, Inspector of Police, through V. H. F. P. W. 13 on receipt of information reached the Government Hospital at Kumarapalayam at about 2. 45 P. M. He held inquest over the dead body between 3 and 5. 30 P. M. During the inquest, he examined P. Ws. 1 and 2 and others. Ex. P16 is the inquest report prepared by him. After completing the inquest, he handed over the body to the Constable P. W. 6 along with Ex. P2 requisition to the Medical Officer to conduct autopsy. At about 5. 45 P. M. He seized the clothes M. Os. 8 to 10 from P. W. I on being produced by her, under Ex. P10 mahazar attested by P. W. 8 and another. He examined P. W. 8 at the hospital. On the same day at about 6. 30 PM. he inspected the scene place and prepared Ex. P11 observation mahazar attested by P. W. 9. He drew the rough sketch Ex. P17. At about 7. 30 P. M. he seized M. O. 6 cot, M. O. 7 bed sheet, M. O. 15 bloodstained earth, M. O. I spade and M. O. 5 spade under Ex. P12 attested by P. W. 9. He examined P. Ws. 3 and 4 on the same day. ( 7 ) AT about 11 A. M. on 18. 3. 1985 P. W. 5 Civil Assistant Surgeon, Government Hospital, Kumarapalayam, in pursuance of the requisition Ex. P2received from P. W. 13 conducted autopsy over the body of Palanisamy and found on him the following injuries: 1. Diffuse contusion over right parietal region. 2. Diffuse contusion over left parietal region. On opening the scalp, there was haemotama on both the parietal regions half of occiput region. Haematoma in scalp flap. 3. Depressed fracture on the right parietal region. CT Shaped. On internal examination: Right dura completely teared and brain matter completely out. All tissues of right side brain oedamatus and congested and distorted. 2. Diffuse contusion over left parietal region. On opening the scalp, there was haemotama on both the parietal regions half of occiput region. Haematoma in scalp flap. 3. Depressed fracture on the right parietal region. CT Shaped. On internal examination: Right dura completely teared and brain matter completely out. All tissues of right side brain oedamatus and congested and distorted. The brain was filled with blood, black in colour. Brain hem distorted and congested. He was of the opinion that the deceased would appear to have died of shock due to brain storam injury due to trauma. Ex. P5 is the post-mortem certificate issued by him. He was of the further opinion that external injuries 1 and 2 could have been caused by a weapon like M. Os. 1 and 2. Ex. P18 is the entry made by him in the Accident Register with reference to the deceased, wherein it is recorded, TTAlleged to have been hit (Tamil Word)T at about 8 A. M. by known person at Rajammals kadu. ( 8 ) P. W. 6, after inquest was over, handed over the clothes found on the body of the deceased and also the waist cord M. Os. 11 to 14 at the police station. ( 9 ) ON 21. 3. 1985 at about 4 P. M. at the bus stop at Kona Kazhuthalur junction P. W. 13 arrested accused 1, 2, 5 and 6. The first accused voluntarily gave a confessional statement and it was reduced into writing. The admissible portion of the statement is marked as Ex. P13. P. W. 10 who was present at that time attested the same. Thereupon the first accused took P. W. 13 and party and the witnesses to Nachammalts land from there he produced M. Os. 2 to 4. P. W. 13 seized them under cover of Mahazar Ex. P14 attested by P. W. 10. He examined P. W. 10 and on the next day, he sent the accused to judicial remand. On 25. 3. 1985 he sent the seized articles to the court with a requisition Ex. P6 to send them for chemical analysis. P. W. 7, Headclerk attached to the Judicial Second Class Magistratets Court, Sankari, in pursuance of the requisition Ex. P6, sent the material objects to the Chemical Examiner under the direction of the Magistrate. The reports of the Chemical Examiner and the Serologist were marked as Exts. P6 to send them for chemical analysis. P. W. 7, Headclerk attached to the Judicial Second Class Magistratets Court, Sankari, in pursuance of the requisition Ex. P6, sent the material objects to the Chemical Examiner under the direction of the Magistrate. The reports of the Chemical Examiner and the Serologist were marked as Exts. P8 and P9. P. W. 13 continued further examination. He examined P. W. 5 doctor on 24. 3. 1985. Accused 3 and 4 surrendered in court on 2. 4. 1985 and P. W. 13 got information about the same. He examined P. W. 5 again. On completing the investigation he laid the charge-sheet against the accused on 20. 5. 1985. ( 10 ) WHEN the accused were examined with reference to the incriminating piece of evidence, they totally denied the prosecution evidence. No witness was examined on their side. ( 11 ) THE trial Sessions Judge after taking into consideration the oral and documentary evidence for the reasons assigned in his ORDER came to the conclusion that the prosecution has proved the case and hence convicted and sentenced the accused as stated above. The convicted accused have preferred this appeal. ( 12 ) LEARNED Senior Counsel for the appellants, Mr. N. T. Vanamamalai, took us through the recorded evidence and advanced arguments. Learned Senior Counsel vehemently argued that in so far as accused 3 to 6 are concerned, there can be no difficulty to come to the conclusion that it is not safe to convict them as the evidence of P. W s. 1 to 4 in respect of the overt acts attributed in respect of these appellants, namely, catching hold of the legs and the hands of the deceased, is highly artificial and that it is not acceptable. The learned Senior Counsel vehemently argued that there was no evidence to show that there was any preconcert among the accused and even according to the prosecution, the occurrence suddenly took place. Further, if really accused 3 to 6 caught hold of the legs and hands of the deceased, it is very difficult for accused 1 and 2 to inflict those injuries and as such accused 3 to 6 who were unarmed and who were alleged to have caught hold of the legs and hands of the deceased should be given the benefit of doubt and they deserve to be acquitted, and their conviction is not sustainable. As far as accused 1 and 2 are concerned, the learned Senior Counsel argued that the trial judge has not accepted the evidence of P. W. 2 and we have got only the evidence of P. Ws. 1,3 and 4. Among them, P. W. 1 is the wife of the deceased and she is an interested witness. Even though she is an injured person, no reliance can be placed on her evidence. Since P. Ws. 3 and 4 were not examined at the inquest, no reliance could be placed on their evidence. The learned Senior Counsel would submit that the learned trial Judge erred in relying on the evidence of P. W. 3 on the ground that he is an independent witness and that his presence at the scene place is probable, while in fact he was a chance witness. Since he IS a resident of a place two miles away from the science placet his presence at the time of occurrence is doubtful. It is submitted that the motive attributed to the occurrence is flimsy and cannot be accepted. He would submit that the occurrence took place at 8 A. M. and it was reported to the police at 12 noon and the magistrate received the First Information Report only at 4 P. M. and that this delay has not been explained. The learned Senior Counsel also submitted that in view of the entry made by P. W. 5 in Ex. P18 Accident Register, no reliance could be placed on the evidence to the overt acts attributed to accused 1 and 2 with regard to the attack on the deceased since P. W. 5 has recorded that the deceased was alleged to have been beaten with spade by a known person at or about the time alleged. Lastly; he would submit that each accused dealt one blow on the head and those two injuries are now found to be fatal. Lastly; he would submit that each accused dealt one blow on the head and those two injuries are now found to be fatal. It is the case of the prosecution that those injuries were caused during the course of quarrel and that too by beating with the back portion of the spade and hence it cannot be said that accused 1 and 2 intended to murder the deceased and in the circumstances the offence would fall only under Section 304, Part 1, I. P. C. and not Section 302 I. P. C. ( 13 ) PER contra, the learned Additional Public Prosecutor argued that as far as accused 3 to 6 are concerned, it has been consistently stated in Ex. P1 and in the evidence that those four accused caught held of the legs and hands of the deceased and as such if the said evidence is accepted, they are liable for conviction for abetment. Even though P. W. 2 was disbelieved by the trial court, we have got the evidence of P. W s. 3 and 4 who are independent witnesses, besides the evidence of the injured witness P. W. 1 on the side of the prosecution as far as the occurrence is concerned, and that their consistent version is that accused 3 and 4 caught hold of the legs and accused 5 and 6 caught hold of the hands and that the first accused beat the deceased on the left side of the head while the second accused beat on the right side of the head. The opinion of the doctor was that the death was due to shock and haemorrhage on account of the injuries to the head. The deceased died as a result of the injuries inflicted by accused 1 and 2 and both the injuries are fatal Even though the weapon of offence is spade which is normally used by agriculturists, in view of the established motive, the accused came to the land where the deceased was working and they picked up a quarrel with the deceased and unlawfully insisted the deceased to allow them to take water from the common well to their newly purchased land, through his newly purchased land, and since the deceased insisted that even if he loses his life, he would not allow them to take water, accused 1 and 2 beat him with the weapons M. Os. 1 and 2 which they were having in their possession on the head of the deceased which is a vital part of the body forcibly which completely crashed the brain and other portions of the head. From the circumstances of the case and also the overt acts attributed to the accused, certainly the intention of the accused can be gathered and their intention was to murder the deceased and their acts would certainly amount to the offence under Section 302 I. P. C. and not Section 304, Part I, I. P. C. as contended on behalf of the appellants. ( 14 ) THE point that arises for consideration in this appeal is, whether the prosecution has proved the guilt of these appellants beyond all reasonable doubt and if so, what is the nature of the offence committed by them. ( 15 ) AS far as the motive aspect is concerned, we have got the evidence of P. W. 1 that about four years prior to the occurrence the deceased entered into an agreement with P. W. 11 to purchase 1- 1/2 acres of land and paid an advance of Rs. 7,000/-to P. W. 11. However, accused 6 and Kaveri (father of the first accused) purchased the said land from P. W. 11 for Rs. 24,000/ -. On account of the same, there was enmity between the two families. It is in evidence that father of the deceased Palanisami by name Adaika Gounder and the father of accused 5,6 and Kaveri (father of the first accused) by name Nallathambi are brothers. There was no partition between them and they were cultivating different portions for convenient enjoyment by irrigating from the common well. The second accused is the son of the fifth accused. The fourth accused is the mother of the first accused. The third accused is the wife of the sixth accused. It is the evidence of P. W. 1 that the sharers in the common well have no right to take water to other lands except to the family properties. The deceased also purchased about 1-1/2 acres of land from one Kandasami and the said land is located at a distance of 20 feet from the road. It is the evidence of P. W. 1 that the sharers in the common well have no right to take water to other lands except to the family properties. The deceased also purchased about 1-1/2 acres of land from one Kandasami and the said land is located at a distance of 20 feet from the road. It is the evidence of P. W. 1 that the accused party were demanding the deceased to allow them to take water from the common well through the land purchased by him from Kandasami, to their newly purchased land from P. W. 11. The deceased did not agree and refused to allow them to do so. P. W. 3 would state that he knew the parties and he owns lands and house at Chemmunchi Kadu at Chettipatti. His further evidence is that about 5 years prior to his deposition (on 18. 2. 1986) the deceased and his older brother Periathambi entered into an agreement to purchase a land from P. W. 11, that accused 6 and the father of the first accused (Kaveri) purchased the same and that on account of the same there was enmity between them. P. W. 11 would depose that he entered into an agreement to sell the land to the deceased Palanisami and his elder brother and had also received Rs. 7,000/-as advance and that he sold the land to accused 6 and Kaveri (father of the first accused) about 4 years ago. In cross-examination, he would state that since there was delay in payment of money by the deceased and since he was urgently in need of money, he sold the same to the father of accused 1 and 6. It is the evidence of P. W. 1 that on the date of occurrence also, while she and her husband (deceased) were working in the field which was purchased from Kandasami, at a distance of 20 feet from the road, at about 8 A. M. accused 1,2 and 6 oath carrying a spade came there saying that they could take water to their newly purchased land. They questioned the deceased as to whether he was allowing them to take water or not, to which the deceased replied that even if he loses his life, he would not allow them to take water to the newly purchased land. Accused 3, 4 and 5 also joined them. They questioned the deceased as to whether he was allowing them to take water or not, to which the deceased replied that even if he loses his life, he would not allow them to take water to the newly purchased land. Accused 3, 4 and 5 also joined them. Saying as to whether the deceased has got such audacity to deny like this, the accused are said to have attacked the deceased. From the evidence of these witnesses, it has been clearly established that though the accused and the deceased are pangolin and cousins, they have not divided their lands by metes and bounds and they were irrigating their lands through a common well. The deceased and his brother entered into an agreement with P. W. 11 to purchase 1-1/2 acres of land and paid an advance of Rs. 7,000/-about four years prior to the occurrence. Accused 6 and the first accusedts father purchased the very same land from P. W. 11 after the said agreement. Ever since that date, there was enmity between the two families. The deceased also purchased about 1-1/2 acres of land from one Kandasami. To irrigate the newly purchased land from P. W. 11 with the water from the common well, the accused party have to take water through the land purchased by the deceased from Kandasami. It is the case of the prosecution that the sharers have no right to take water from the common well to the newly purchased lands from third parties. Hence, on account of the enmity in view of the purchase of the land by the accused from P. W. 11, who had already agreed to sell the very same property to the deceased and received an advance of Rs. 7,000/-, the deceased refused to allow the accused party to take water from the common well, that too through the land purchased by him from Kandasami. The accused party are aggrieved by the same. On the date of occurrence also, the accused came with the object of taking water, from the common well through the land purchased by the deceased from Kandasami, to the newly purchased land from P. W. 11 by taking the law into their own hands, and when the deceased objected to the illegal activities, they resorted to attack him and kill him. Hence the prosecution has established the motive for the crime by acceptable and satisfactory evidence. ( 16 ) NEXT we have to consider the evidence with regard to the actual occurrence and see whether the evidence adduced by the prosecution has established the guilt of these appellants. The prosecution relied on the evidence of P. Ws. 1 to 4 corroborated by the medical testimony through P. W. 5 and the recovery of M. Os. 2, 3 and 4 spades in pursuance of the confession given by the first accused. It is the evidence of P. W. 1 who is the wife of the deceased that on the date of occurrence she and her husband (deceased) word attending to agricultural operation in the land which was purchased from Kandasami. At that time, she was having M. O. 4 spade and her husband was having M. O. 5 spade. As already stated at that time, accused 1, 2 and 6 came there. They were each having a spade and they were telling that they would take water to the newly purchased land. They also asked her husband as to whether he would allow them to take water or not. Her husband replied that he would not allow them to take water even if would lose his life. At that time, accused 3, 4 and 5 were also there. Accused 5 and 6 caught hold of each hand and accused 3 and 4 caught hold of both the-legs. The first accused beat her husband with M. O. 2 spade on the left side of the head and the second accused beat her husband on the right side of the head with M. O. 1 spade. When she raised a hue and cry and ran towards her husband, the sixth accused hit her with M. O. 3 spade on her right chest and pushed her down. She fell down face upwards. This was witnessed by P. Ws. 3 and 4 and also her son and daughter. When they approached the deceased, they threatened them. Thereupon they ran away with the spades from the scene place. According to her, subsequently her injured husband was placed on the cot M. O. 6 which was brought by her children. The bed sheet M. O. 7 was spread over the cot. 3 and 4 and also her son and daughter. When they approached the deceased, they threatened them. Thereupon they ran away with the spades from the scene place. According to her, subsequently her injured husband was placed on the cot M. O. 6 which was brought by her children. The bed sheet M. O. 7 was spread over the cot. A van was brought by the elder brother of her husband and he was taken to the Government Hospital. P. W. 5 examined her and also her husband, P. W. 5 sent intimation Ex. P4 to the police station. P. W. 12 Head Constable received the same at 11. 45 A. M. and came to the hospital. P. W. 1 gave the complaint Ex. P1 giving details of the occurrence, including the presence of P. Ws. 3 and 4. Her evidence is amply corroborated by her report Ex. PT and that of the medical testimony adduced through P. W. 5 who examined her and issued the wound certificate Ex. P3. P. W. 5 found on her a contusion over right side chest about 2 diameter; According to him, the said injury is simple in nature and the said injury was said to have been caused on the same day due to assault. The evidence of P. W. 1 is corroborated by the evidence of P. W s. 3 and 4 who are neighbours and who are independent witnesses. It is the evidence of P. W. 3 that he is a resident of Chemmunchi Kadu, Chettipatti and that his house is about 100 feet away from his land. On the day of occurrence, he was working in the adjoining field of the deceased. On hearing the noise, he went there. He noticed P. W. 1 and the deceased were working. At the time when he ran there, he noticed accused 1, 2 and 6 coming running with spades and asked the deceased as to whether he would allow water or not. The deceased replied that he would not allow water. Thereupon they said that if he refused, he will have to face the consequences. At that time accused 3, 4, 5 and 6 came there. The deceased replied that he would not allow water. Thereupon they said that if he refused, he will have to face the consequences. At that time accused 3, 4, 5 and 6 came there. At first he said that among accused 3, 4 and 5, one person caught hold of the hand and one person caught hold of the leg, and again, he would state that accused 3 and 4 caught hold of the legs while accused 5 and 6 caught hold of the hands. The first accused beat with spade once on the left side of the head and the second accused beat on the right side of the head with spade. P. W. 1 ran near her husband. The sixth accused hit her with spade and pushed her down. Again, she rose up and ran. He (P. W. 3) P. W. 4, P. W. 2 and others ran there. Accused 1 and 2 threatened them. Thereupon all the accused ran away. In cross-examination also he asserted that he has a land on the west of the land of the deceased and he happened to witness the occurrence while he was in his cotton field. The presence of this witness has been mentioned in the earliest report. P. W. 4 who is also a resident of Chettipatti, has a land on the north of the land of the deceased. The lands of the deceased and this witness are separated by the Panchayat road. P. W. 4 happened to witness the occurrence while he was attending to his cattle. He corroborated the evidence of P. W. 1 respect of the actual occurrence and the overt acts of these accused in all respects. Nothing is elicited in the evidence of these witnesses to reject their testimony. There is not even a suggestion that they were inimically disposed towards the accused and that is why they are deposing falsely or they were in any way interested in the deceased. Since they are all neighbours of the scene place, their evidence is natural and probable. The mere fact that they were not examined at the inquest and they were examined later on the same day would not in any way affect their testimony especially when their names find a place in Ex. P 1. Since they are all neighbours of the scene place, their evidence is natural and probable. The mere fact that they were not examined at the inquest and they were examined later on the same day would not in any way affect their testimony especially when their names find a place in Ex. P 1. Their evidence with regard to the overt acts in regard to accused 1 and 2 has been amply corroborated by the medical testimony adduced through P. W. 5 who conducted autopsy and who issued post mortem certificate Ex. PS. He noticed 3 injuries on the head which are described in Ex. PS and he was of the opinion that the deceased would appear to have died of shock due to brain storam injury due to trauma. These injuries could have been caused by boating with a weapon like M. Os. 1 and 2. The medical evidence adduced through P. W. 5 amply corroborated the ocular testimony. ( 17 ) WHAT all the learned Counsel for the appellants would contend is that in the accident register, which is marked as Ex. PIS, it is recorded that P. W. 1 is alleged to have told P. W. 5, that her husband sustained injuries due to beating with a spade by a known person and P. W. 5 has noted all the three external injuries in Ex. P18 which is the accident register. It is to be no too that, according to the doctor P. W. 5, he examined the injured Palanisami at 11 A. M. and also examined P. W. 1 at 11. 05 A. M. The injured Palanisami expired at 11. 20 A. M. P. W. 5 sent intimation of accident to the police, Ex. P. 4. P. W. 12 Head Constable received the intimation at 11. 45 A. M. and came to the hospital at 12 noon. He recorded Ex. P1 statement from P. W. 1. He returned to the police station and registered a case. The First Information Report was received by the Magistrate at 4 P. M. Thus it is seen that after the arrival of the injured at the hospital, within an hour Ex. P1 came into existence wherein the details of the attack have been set out and that has been received by the Magistrate also at the earliest point of time. In the face of Ex. P1 came into existence wherein the details of the attack have been set out and that has been received by the Magistrate also at the earliest point of time. In the face of Ex. P1, the failure to record in Ex: P18 that the deceased was attacked by more persons than one, would not affect the case of the prosecution. The weapon of offence, namely, spade, has been clearly mentioned. The time has been clearly mentioned. The only thing is that the plurality of the assailants has not been noted. That will not in any way affect the case of the prosecution especially in the circumstances of the case where the earliest report came into existence within one hour after their arrival at the hospital. In Ex. P1 the details of the case including the names of the accused and the witnesses and the manner of attack on the deceased had been clearly set out. The medical testimony fully corroborated the ocular testimony with regard to the weapon of offence, time of occurrence and nature of injuries. It is clear that the deceased died as a result of the injuries sustained on the head due to beating with a weapon like M. Os. 1 and 2 spades on the head. Nothing has been elicited in cross-examination to discredit the medical evidence. On the other hand, the various answers elicited in cross-examination only support the case of the prosecution. In any event the medical evidence does not rule out the possibility of attack as alleged by the prosecution. As rightly observed by the learned trial Judge, the medical evidence supports the case of the prosecution. ( 18 ) THE prosecution relied on one other piece of circumstance; The first accused along with accused 2, 5 and 6 was arrested on 21. 3. 1985 at 4 P. M. at the bus stop at Kona Kazhuthalur junction by P. W. 13, Inspector. The first accused voluntarily gave a statement and it was reduced into writing in the presence of P. W. 10. The admissible portion of the statement was marked as Ex. P13. In pursuance of the said statement, he took P. W. 13 and party and the witnesses to Nachammals land and from there he produced M. Os. 2 to 4. They were seized under the cover of mahazar Ex. P14. The admissible portion of the statement was marked as Ex. P13. In pursuance of the said statement, he took P. W. 13 and party and the witnesses to Nachammals land and from there he produced M. Os. 2 to 4. They were seized under the cover of mahazar Ex. P14. It is in evidence that M. O. 4 was the one which was used by P. W. 1 for attending to her work; M. O. 2 was the one which was used by the first accused and M. O. 3 was the one which was used by the sixth accused. M. O. 1 which was used by the second accused was recovered from the scene place at the time of inspection by P. W. 13. Though M. O. 1 was found to contain blood, its origin could not be determined as it was disintegrated. The mere fact that M. Os. 2 to 4 do not contain blood will not affect the case of the prosecution. The recovery of M. Os. 2 to 4 at the instance of the first accused is relevant to establish the conduct of the first accused in respect of the involvement in the offence in question. Even eschewing that part of the evidence, we have got the direct testimony of the eye witnesses which is corroborated by the medical testimony. Thus, on a careful consideration of the entire materials, we have no hesitation in holding that the prosecution has established the guilt of appellants 1 and 2 beyond all reasonable doubt and only as a result of the beating of the deceased with M. Os. 1 and 2 by appellants 1 and 2 each once on the head of the deceased, he died at or about 11. 20 A. M. on the same day at the Government Hospital. ( 19 ) AS regards the other accused A3 to A6, accused 3 to 5 were not admittedly armed. In Ex. P18, as rightly contended by the learned Counsel for the appellants, reference was not at all made about the catching hold of the deceased by any of these accused namely accused 3 to 6 when the deceased was attacked by accused 1 and 2. Now it is stated in evidence by P. W. 1 that the fifth accused caught hold of the left hand while the sixth accused caught hold of the right hand. Now it is stated in evidence by P. W. 1 that the fifth accused caught hold of the left hand while the sixth accused caught hold of the right hand. Accused 3 and 4 caught hold of the legs of the deceased. P. W. 2 has stated that the fifth accused caught hold of the right hand while the sixth accused caught hold of the left hand. However, P. W. 3 would state that accused 3, 4 and 5 caught hold of the hand and leg. He has also stated that accused 3 and4 caught hold of the leg and accused 5 and 6 caught hold of the hand. P. W. 4 did not state that the fifth accused caught hold of the left hand and the sixth accused caught hold of the right hand. He simply stated that accused 5 and 6 caught hold of each hand and accused 3 and 4 caught hold of each leg. In Ex. P1, it is simply stated that accused 3, 4, 5 and 6 caught hold of the leg and hand tightly. In effect it has not been stated which accused caught hold of which hand and which accused caught hold of which leg. The learned Counsel for the appellants rightly argued that it is not possible to inflict the injuries noticed on the deceased, if they have caught hold of the deceased at the time of the occurrence. As already stated, the evidence on this aspect is discrepant. The learned Senior Counsel argued that there are only two injuries and they are ascribed to accused 1 and 2, and in order to implicate accused 3 to 6, they were also given the role of catching hold of the hands and legs and that it is highly artificial and unacceptable and this has not been proved and no reliance could be placed. Their presence in the field at the time of occurrence cannot be said to be unusual as they are members of the same family and they were attending to the work in the field and on hearing the shouts, they could have gathered there. But they cannot be held liable for any offence for their mere presence. Their overt acts are not satisfactorily proved. But they cannot be held liable for any offence for their mere presence. Their overt acts are not satisfactorily proved. Hence in the circumstances of the case and considering the probabilities of the case, we are of the view that the participation of accused 3 to 6 with regard to the murder of the deceased is doubtful and in any event the evidence adduced by the prosecution in respect of their involvement is not free from doubt. As such their guilt has not been established beyond reasonable doubt. ( 20 ) WITH regard to charge No. 5, it is stated that the sixth accused injury to P. W. 1 with spade. P. W. 1 has clearly stated that when she run towards, the deceased, the sixth accused hit her with M. O. 3 spade on her chest and pushed her down. P. Ws. 2 to 4 have corroborated this evidence. The medical evidence also corroborated the same. Hence this charge is proved. ( 21 ) WE have to consider the nature of the offence committed by accused 1 and 2. The learned Senior Counsel for the appellants vehemently argued that this is a case where during the course of sudden quarrel arising out of taking of water from the common well to the newly purchased land of the sixth accused and Kaveri (father of the first accused) the occurrence took place. It is in evidence that the sixth accused and Kaveri purchased the land 4 years ago. The defendant objected for taking of water to the newly purchased land. The learned Senior Counsel pointed out that even according to the investigating officer, there is a channel leading from the common well to the newly purchased land and there is also traces of taking water. The learned Senior Counsel vehemently argued that because the deceased objected on the date of occurrence to the accused taking water and while the accused persistently insisted of taking water, a wordy quarrel arose and during the course of the quarrel, the occurrence had happened. Accused 1 and 2 were having spades for agricultural operation. The deceased and P. W. 1 were also having spades in their hands for attending to their work. Accused 1 and 2 gave only one blow each and among the two injuries one proved to be fatal. Accused 1 and 2 were having spades for agricultural operation. The deceased and P. W. 1 were also having spades in their hands for attending to their work. Accused 1 and 2 gave only one blow each and among the two injuries one proved to be fatal. They did not deal any further blow and, thereafter, they ran away from the scene. Considering the relation ship between the parties and the circumstances under which accused 1 and 2 gave one blow each, it cannot be said that they intended to murder the deceased. There was no evidence of pre-plan or premeditation to murder the deceased. In the circumstances, the offence committed by accused 1 and 2 would fall only under Section 304, Part I, IPC and would not fall under Section 302 IPC. In support of the contention, the Senior Counsel relied on the decision of the apex court in Gurdip Singh v. State of Punjab. The facts in that case are: The accused suspected that Maya Bai had illicit relationship with the deceased. On March 14, 1984, the deceased was returning from village Fattuwala and when he reached the field of Kashmiri Lal, the four accused came out of the wheat field of Kashmiri Lal. The first appellant had a kirpan with him and the second appellant a kappa. It is alleged that the four accused took the deceased to the wheat field of Kashmiri Lal and threw him on the ground. One of the acquittal accused Jit Singh caught hold of the arms of the deceased and the two appellants caused injuries with the weapons in their hands, to the deceased. There was an alarm created by Lachhman Singh, P. W. 3, which attracted P. W. 4 - Rulia Singh and Mohinder Singh. When they reached the spot, the accused ran away with their weapons. P. W. 3 gave the F. I. R. at 8. 30 P. M. The deceased had seven injuries on his body. Injury No. 7 was fatal according to the doctor who examined him. The accused denied their guilt. When they reached the spot, the accused ran away with their weapons. P. W. 3 gave the F. I. R. at 8. 30 P. M. The deceased had seven injuries on his body. Injury No. 7 was fatal according to the doctor who examined him. The accused denied their guilt. In that case though the learned Judges came to the conclusion that they have no hesitation in holding that the appellants were responsible for the death of the deceased Kishore Singh by attacking him with the weapons in their hands, on a reappraisal of the entire evidence, they found it difficult to agree with the trial court that the appellants are guilty for an offence under Section 302 I. P. C. It was held: The materials available create considerable doubt 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 1. A. I. R. 1987 S. C. 1151. attacked him. We are not unmindful of the fact that the 7th injury noted in the post-mortem certificate is in the ordinary course sufficient to cause the 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 Section 304, Part I, and to sentence them under that section. The appellants in that case were sentenced to seven years imprisonment. In Surinder Kumar v. Union Territory, Chandigarh, it has been held: To invoke Exception 4 to 5. 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. 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 a 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 to the course of the scuffle he received injuries, one of which proved fatal, the accused would be 2. A. I. R. 1989 S. C. 1094. entitled to the benefit of the Exception 4 to 5. 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 5. 304, Part JTI Applying the ratio in the above decisions to the facts of this case, we find that this is a case where the accused as usual asked the deceased to allow them to take water to the newly purchased land. Admittedly the purchase was made about 4 years ago. It is admitted that the parties are closely related. The deceased originally entered into an agreement with the vendor but the accused purchased the said land while the said agreement was subsisting. It is the admitted fact that there is a channel to the said land. Admittedly the investigating officer noted the existence of the channel from the common well to this land and also traces of taking water through the channel. On the date of occurrence, since the deceased refused to allow the accused to take water, there was a. wordy quarrel between them and during the course of the sudden quarrel and at the spur of the moment accused 1 and 2 had inflicted one beating each, not with the blade portion of the spade but with the handle portion of the spade. They beat only once. They were always having spade for agricultural work. At that time of occurrence, they were attending to work and spades were readily available with him. As a result of the injuries, the deceased died later at the hospital. It is stated that one of the two injuries is fatal injury. In the circumstances, it cannot be said that the offence committed by accused 1 and 2 would fall under Section 302 I. P. C. and it would fall under Section 304, Part I, I. P. c. ( 22 ) IN the result under charge No. 1, the conviction of accused 3 to 5 under Section 147 I. P. C. and the sentence to undergo R. I. for one year each are set aside and under charge No. 2, the conviction of accused 1,2 and 6 under Section 148 I. P. C. and the sentence to undergo RI. for two years each are set aside; Under Charge No. 3, the conviction of accused 1 and 2 under Section 302 read with Sec. 34 I. P. C. and the sentence to suffer imprisonment for life are set aside and instead they are convicted under Section 304, Part I I. P. C. and sentenced to suffer RI. for eight years. Under Charge No. 4, the conviction of accused 3 to 6 under section 302 read with 109 I. P. C. or Section 302 read with 149 I. P. C. and the sentence of imprisonment for life are net aside. Under Charge No. 5 the conviction of the sixth accused under Section 324 I. P. C. and the sentence to suffer R. I. for one year are confirmed. In so far as accused 3 to 5 are concerned the appeal is allowed and they are acquitted and their bail bonds shall stand cancelled. In so far as accused 1, 2 and 6 are concerned, the appeal is dismissed with the above modification. Their bail bonds shall stand cancelled. Accused 1, 2 and 6 are directed to surrender forthwith. Appeal allowed accordingly. Accused 3 to 5 acquitted.