Judgment :- Kanakaraj, J. The appellants were accused 1, 2 and 4 to 14 before learned Sessions Judge, South Arcot at Cuddalore, in S.C. No.222 of 1985. The third accused before learned Sessions Judge was acquitted and all the other accused who were convicted as per particulars to be furnished hereafter, have therefore, preferred this appeal. There were as many as 15 charges against the appellants and the acquitted third accused. (i) The first charge related to all the accused and charged the accused of having formed an unlawful assembly on 5. There were as many as 15 charges against the appellants and the acquitted third accused. (i) The first charge related to all the accused and charged the accused of having formed an unlawful assembly on 5. 1985 at 9.00 p.m. near the Eswaran Temple, Pavaikulam village, with the intention of murdering the deceased Dhanavel and causing simple or grievous injuries on the prosecution witnesses and others who came in support of them armed with deadly weapons and thus committing an offence punishable under Sec. 148, I.P.C. (ii) The second charge was that all the accused were members of an unlawful assembly formed for the purpose of murdering Dhanavel and causing simple or grievous injuries to the prosecution witnesses and used force and violence, thus committing an offence punishable under Sec. 147, I.P.C. (iii) The third charge was directed against the first and the second accused for inflicting injuries on the head of the deceased Dhanavel with the intention of murdering him, thus committing an offence punishable under Sec. 302, I.P.C. (iv) Charges 4 to 10 were directed against the first, fourth, seventh, eighth, ninth, eleventh and fourteenth accused for inflicting simple injuries on Arumugham (P.W.7), Appadurai (P.W.2), Desingh (P.W.3), Sivasankaran (P.W.6), Vaithiyalingam (P.W. 1) and Thanikkachalam (P.W.5), Respectively with iron pipe, knife or spear, as the case may be, punishable under Sec. 324, I.P.C. (v) Charges 11 and 12 were directed against the fifth and the sixth accused for having caused grievous injury on P.Ws.2 and 3 respectively, with an iron pipe and with knife like "Sillakol respectively, punishable under Sec. 326, I.P.C. (vi) The thirteenth and fourteenth charges related to the third accused, twelfth accused and the thirteenth accused for causing simple injuries to the deceased Dhanavel and P.W. 1 punishable under Sec. 323, I.P.C. (vii) The fifteenth charge related to the action of all the accused in being members of an unlawful assembly in which accused 1 to 3 caused the death of Dhanavel and therefore, all of them were punishable for an offence of murder under Sec. 302, I.P.C. read with Sec. 149, I.P.C. 2. Learned Sessions Judge found the accused 1, 2, 4 to 11 and 14 guilty of an offence under Sec. 148, I.P.C. He also found accused 12 and 13 guilty of an offence under Sec. 147, I.P.C. Accused 1 and 2 were found guilty of an offence under Sec. 302, I.P.C. Accused 4, 8, 11 and 14 were found guilty of an offence under Sec. 324, I.P.C. The fifth accused was found guilty of an offence under Sec. 326, I.P.C. All the accused except the third accused, Gunasundari, were found guilty of an offence under Sec. 302, I.P.C. read with Sec. 149, I.P.C. and the accused were convicted under the above provisions of the Indian Penal Code. Learned Sessions Judge imposed the sentence of life imprisonment on the first and the second accused under Sec. 302, I.P.C. and life imprisonment on all the other accused except the third accused for the offence under Sec. 302, I.P.C. read with Sec. 149, I.P.C. He also imposed a sentence of one year rigorous imprisonment on accused 1, 2, 4 to 11 and 14 under Sec. 148, I.P.C. Accused 12 and 13 were sentenced to six months rigorous imprisonment for the offence under Sec. 147, I.P.C. Accused 4, 8, 11 and 14 were sentenced to one year rigorous imprisonment under Sec. 324, I.P.C. The fifth accused was sentenced to two years rigorous imprisonment under Sec. 326, I.P.C. 3. The appellants are challenging the respective convictions and sentences imposed on them as above. It so happens that the first and the tenth accused have passed away after the judgment of learned Sessions Judge. Consequently, appeal in respect of the first appellant and the ninth appellant (10th accused) stands abated under Sec. 394, Crl.P.C. Accused 1, 2, Band Mare ‘Pankalis’. The third accused who was acquitted of all the charges, is the wife of the first accused. Accused 8, 9, 10 and 11 are brothers-in-law of the first accused. Accused 4, 6 and 12 are also cousins of the second accused. Therefore, all the accused are closely related. Similarly, P.Ws.2 and 7 are brothers of the deceased Dhanavel. P.Ws.3 and 6 are sons of P.W.4. P.W.5 is the brother’s son of P.W.1. P.W.8 is the aunt’s son of P.W.9. Thus, the deceased and prosecution witnesses are mostly related. Accused 4, 6 and 12 are also cousins of the second accused. Therefore, all the accused are closely related. Similarly, P.Ws.2 and 7 are brothers of the deceased Dhanavel. P.Ws.3 and 6 are sons of P.W.4. P.W.5 is the brother’s son of P.W.1. P.W.8 is the aunt’s son of P.W.9. Thus, the deceased and prosecution witnesses are mostly related. It is unfortunate that the entire occurrence is said to have taken place on account of a petty quarrel not even worth mentioning. 4. On 5. 1985 at about 7.00 p.m. P.W. 10 was in his house at Pavaikulam. Accused 1, 2 and 3 came to the house of P.W. 10 and abused him on the ground that P.W. 10 and his sister had broken the leg of a goat belonging to the second accused. P.W. 10 and his sister denied the said allegation. P.W. 1, the deceased Dhanavel, P.W.6 and P.W.8 were coming that side and heard the abuses of accused 1 to 3. The deceased Dhanavel told the second accused that compensation can be obtained for the loss of the goat’s leg. The first accused retorted saying that the deceased Dhanavel had no business to interfere as a Panchayatdar. P.W. 1 advised P.W. 10 and his sister to go to their houses and all of them returned back to their houses. 5. On the date of occurrence namely, 5. 1985, at about 9.00 p.m. P.Ws. 1, 5, 6, 8 and the deceased Dhanavel were gossiping near Easwaran temple opposite to the house of Singaravel. At that time the second and the fourth accused came from the West each with a knife. The second accused addressed the deceased Dhanavel in filthy language referring to his offer to get compensation for the goat’s leg. At the same time, Accused 1, 3 and 5 to 14 came to the place. The first accused was having a knife in his hand. The third accused was armed with a stick, the eighth accused with a knife, the sixth accused with ‘Silla Kol’ (a type of a knife) and the fourteenth accused with a knife. Accused 5, 7, 9 and 10 were having iron pipes. The eleventh accused was having a spear. The twelfth and thirteenth accused were armed with sticks. The first accused cut the deceased Dhanavel on his head with his knife (M.O.1). Accused 5, 7, 9 and 10 were having iron pipes. The eleventh accused was having a spear. The twelfth and thirteenth accused were armed with sticks. The first accused cut the deceased Dhanavel on his head with his knife (M.O.1). The second accused cut twice on the head of the deceased with his knife (M.O.2). The third accused hit the deceased with the stick (M.O.3) on his back. The fourth accused cut Appadurai, P.W.2 on the head. The fifth accused hit P.W.2 with iron pipe (M.O.4) on his right flank. At that time P. W.3 came there. The sixth accused stabbed him on the forehead with knife, M.O.5. P.W.4 Narayanaswamy, came there running. The eighth accused cut him on the head with his knife. The ninth accused and the tenth accused hit P.W.4 on his back with iron pipes. The tenth accused used M.O.6 iron pipe, P.W.1 intervened to separate them. The eleventh accused stabbed the head of P.W.1 with spear. The twelfth accused hit P.W.1 on his left hand with stick. The thirteenth accused hit P.W.1 on his right, hand with stick. P.W.5 came there running and he was cut on the back of right ear by the fourteenth accused with knife. The deceased Dhanavel fell down on receipt of the injuries. There was a street tube-light burning at the scene of occurrence. One Ganapathy brought a car and all the injured including the deceased and P.W.1 got into the car and proceeded to Kadambuliyur Police Station. P.W.1 narrated the occurrence to the Head Constable, Muthuvel there, who is now no more, who recorded the same. On being read over, P.W.1 signed the same. It is Ex.P-1. The Head Constable gave a memo to the injured persons for treatment at Panruti Government Hospital. He also registered Crime No.1 16 of 1985 and Ex.P-23 is the First Information Report. 6. P.W. 11 was the doctor in attendance in the Panruti Government Hospital. At about 11.25 p.m. she first examined the deceased Dhanavel, then P.Ws.2, 3, 5 and P.W. 1 and lastly P.W.4 in that order. She referred all of them to Cuddalore Government Head Quarters Hospital for further treatment. Even as he was waiting to be taken to Cuddalore, Dhanavel died at about 115. p.m. Ex.P-2 is the Accident Register copy for the deceased and Ex.P-3 is the death intimation to the police. She referred all of them to Cuddalore Government Head Quarters Hospital for further treatment. Even as he was waiting to be taken to Cuddalore, Dhanavel died at about 115. p.m. Ex.P-2 is the Accident Register copy for the deceased and Ex.P-3 is the death intimation to the police. Exs.P-4 to P-8 are the copies of accident register, so far as the other persons examined by P.W.11. The injuries on P.W.2 and P.W.3 were grievous. She opined that the injuries could have caused on the respective persons by weapons like M.Os.1 to 6 and sticks. P.W. 17, Sub-Inspector of Police who was on other duty on the evening of 5. 1985 returned to the police station only at about 7.00 a.m. on 5. 1985. At about 7.45 a.m. he received the death intimation Ex.P-3 and altered the First Information Report into Sec. 302, I.P.C. He sent express First Information Report Ex.P-24 to the Magistrate and higher authorities. Ex.P.18, Inspector of Police received Ex.P-3 at about 8.15 a.m. He preceded to Panruti Government Hospital and conducted an inquest on the body of the deceased Dhanavel between 9.30 a.m. and 1.30 p.m. Ex.P-25 is the inquest report. He examined at the inquest P.Ws.1, 5, 6, 7, 8 and others. He sent the body for postmortem through P.W. 16 with requisition Ex.P-11. He sent the injured P.Ws.6 and 7 to the hospital with a memo. 7. P.W. 12, the Assistant Surgeon at Panruti Government Hospital examined P.Ws.7 and 6 respectively and Exs.P-9 and P-10 are copies of Accident Register in respect of them. He also opined that the injury on P.W.7 could have been caused by weapon like M.O.11 and those on P.W.6 by weapon like M.O.4 or M.O.6. P.W.9 took P.Ws.2 to 4 to the Cuddalore Government Hospital and collected their blood stained, clothes and brought them to the Government Hospital, Panruti and handed them over to P.W. 18 who, seized them under mahazar Ex.P-17 attested by P.W.15. They are M.Os.7 and 10, 12 and 13. 8. At this stage of the chronology we must advert to one important fact. The second accused was admitted in the Government Hospital, Cuddalore by his wife and brother-in-law, fourth accused and brother Kaliyan at about 5.00 a.m. on 5. 1985 with incised wounds, abrasions and contusions. an intimation was sent to the Kadampuliyur Police. 8. At this stage of the chronology we must advert to one important fact. The second accused was admitted in the Government Hospital, Cuddalore by his wife and brother-in-law, fourth accused and brother Kaliyan at about 5.00 a.m. on 5. 1985 with incised wounds, abrasions and contusions. an intimation was sent to the Kadampuliyur Police. One Constable P.C. 1565 was sent and he recorded statement from the second accused at the hospital. In his statement he has stated that at about 8.00 p.m. on 5. 1985, he was informed by the first accused that his brother-in-law Kasinathan (fourth accused) was being beaten. He proceeded to the spot and saw P.Ws.6, 8 and 2 were beating the fourth accused. The second accused tried to separate them. P.W.6 questioned the second accused and went into his house, brought out a knife and cut him on the fore-head, head and cheek. P.W.8 brought a pickaxe and that the second accused on the right and left shoulders and his back. The second accused swooned and dropped down. This complaint is Ex.D-1. It was brought to Kadampuliyur Police Station and it was registered as Crime No. 117 of 1985 under Secs. 324 and 307, I.P.C. at 12,45 p.m. on 5. 1985. Ex.D-2 is the First Information Report. 9. P.W. 18 then proceeded to the scene of occurrence at 2.15 p.m. and prepared observation mahazar Ex.P-18, a rough sketch Ex.P-26. He recovered M.Os.14 and 15 blood-stained earth and sample earth under Ex.P-19. At about 3.15 p.m. he recovered bloodstained earth and sample earth from the house of P.W.3 under Ex.P-20. Exs.P-19 and 20 were attested by P.W.15.He examined P.Ws.10 and 15 on that day. At 6.30 p.m. he arrested the third accused and examined her. She gave a voluntary confession, the admissible portion of which is Ex.P-21. In pursuance of the confession the third accused took them into her house and produced M.Os.1 to 6 and 11. They were recovered under inventory, Ex.P-22 attested by same witnesses. The third accused was sent for remand on the next day. He examined the doctors P.Ws.11 and 13 by showing M.Os. 1 to 6 and 11. He examined P.Ws.2, 3, 4 and 9. He perused Ex.D-2, First Information Report and investigated the same. He found the allegations to be false and referred the case and sent notice to the second accused. On 15. He examined the doctors P.Ws.11 and 13 by showing M.Os. 1 to 6 and 11. He examined P.Ws.2, 3, 4 and 9. He perused Ex.D-2, First Information Report and investigated the same. He found the allegations to be false and referred the case and sent notice to the second accused. On 15. 1985 at 10.30 a.m. the second accused was arrested Kadampuliyur police station and sent for remand. He sent a requisition Ex.P-13 to the Magistrate for forwarding the incriminating articles and objects for the purpose of chemical analysis. 10. Ex.P-14 was the Head Clerk in the Judicial Second Class Magistrate, Panruti. He obtained orders, and sent them for chemical analysis under Ex.P-14. Ex.P-15 is the report of the Chemical Analyst and Ex.P-16 is the report of the Serologist. On completion of the investigation P.W. 18 filed the final report under Sec. l73(2), Crl.P.C. on 210. 1985. 11. On committal by the Judicial Second Class Magistrate, Panruti, learned Sessions Judge, framed the charges as already set out by us and on the accused pleading “Not guilty” examined 18 witnesses and marked 28 exhibits, besides 17 material objects. On the accused being questioned under Sec. 313, Crl.P.C. they denied complicity and the second accused filed a written statement under Sec. 233, Crl.P.C. along with the wound certificate issued by the doctor at the Government Head Quarters Hospital, Cuddalore. He also filed Exs.D-1 and D-2, but did not let in any oral evidence. It is on this basis that learned Sessions Judge rendered the conviction and sentences already noticed by us. 12. In this case we propose to notice the findings of learned Sessions Judge on the important aspects of the case before considering the evidence and the arguments of learned counsel for the appellants. The trial Judge proceeds by stating that the motive ascribed by the prosecution for the assault on the deceased and the prosecution witnesses with deadly weapons is flimsy. In fact he says that there could not have been any serious pre-determined motive or intention on the part of the accused to assault the deceased and the others on account of the incident which happened on the previous day, namely, on 5. 1985 at about 7.00 p.m. in front of the house of the second accused, in an altercation between the second accused and P.W. 10. 1985 at about 7.00 p.m. in front of the house of the second accused, in an altercation between the second accused and P.W. 10. It was indeed a quarrel between the second accused and his wife on the one side and P.W. 10 and his sister on the other side. The dispute was about the second accused’s goat’s leg having been broken. P.W. 10 and his sister denied that they were responsible for the same. The deceased, P.W.1, 6 and 8 who accidentally came that side watched the altercation and the deceased only said compensation could be. claimed by the second accused and he need not scold P.W. 10 in the night. The first accused retorted by saying, Thereafter everybody dispersed. There was not even the usual threats by the first and the second accused of wreaking vangeance against anybody much less against the deceased Dhanavel. We are only trying to point out that there was no conspiracy or per-plan to attack the deceased, nor was there any provocation for the same. In fact there is absolutely no evidence on the side of the prosecution to the above effect. No doubt, there can develop a plan or motive on the spot. We will deal with that aspect when we deal with the occurrence. Even so, the trial Judge concludes that the occurrence on 5. 1985 at 9.00 p.m. was because of the said quarrel on 5. 1985. In our opinion, the origin and genesis has not been truthfully unfolded by the prosecution. There are other reasons for this conclusion to which we will make a reference a little later. 13. The occurrence is said to have taken place at 9.00 p.m. on 5. 1985, according to the prosecution witnesses and according to Ex.P-1 given at 10.30 p.m. But when the deceased and the prosecution witnesses P.Ws. 1 to 5 were taken to the hospital at 11.25 p.m. P.W. 11 the doctor has recorded the time as given by the deceased and the witnesses as 8.00 p.m. in Exs.P-2 and P-3 to P-8 being the accident register copies. 1 to 5 were taken to the hospital at 11.25 p.m. P.W. 11 the doctor has recorded the time as given by the deceased and the witnesses as 8.00 p.m. in Exs.P-2 and P-3 to P-8 being the accident register copies. P.Ws.6 and 7 who were taken a little later at 12.10 p.m. they gave the time of occurrence as 9.00 p.m. to the doctor, P.W.12 as seen in Exs.P-9 and P-10 In Exs.D-1 and D-2 given by the second accused as a complaint against some of the prosecution witnesses, the time of occurrence is given as 8.00 p.m. on 5. 1985. On the above evidence, the trial Judge very rightly concludes that the fight between the accused party and the prosecution party commenced at 8.00 p.m. itself. He however, unnecessarily adds that the injuries could have been inflicted a little later. We also fix the time of commencement of the fight at 8.00 p.m. because Exs.P-2, P-4 to P-7 are the earliest documents and the doctor P.W. 11 could not have any motive for entering incorrect timings. The trial Judge clearly says that the altercation between the two sides commenced at 8.00 a.m. He has apparently given credence to the second accused’s complaint and rightly so because the prosecution has not cared to explain the injuries on the person of the second accused. 14. The trial Judge then proceeds to examine the whole case of the second accused, and disbelieves the same as totally impobable. He however, accepts that the prosecution has failed to explain the injuries on the second accused. But he finds that a street tube-light was burning and there was no doubt that it is only the accused who had assaulted the deceased and the prosecution witnesses. We also accept the above findings, but we do not accept the next assumption by learned Sessions Judge that one or more of the prosecution witnesses could have retaliated and the second accused could have been injured. The trial Judge fails to see that such a finding will lead to the further conclusion that some of the prosecution witnesses were also armed with deadly weapons. 15. We now go a little deeper into the actual occurrence. The prosecution case is that the deceased, P.W.1, P.W.5, P.W.6 and P.W.8 were gossipping near the Eswaran Temple at about 9.00 p.m. on 5. 15. We now go a little deeper into the actual occurrence. The prosecution case is that the deceased, P.W.1, P.W.5, P.W.6 and P.W.8 were gossipping near the Eswaran Temple at about 9.00 p.m. on 5. 1985 when the second and the third accused came there each armed with a knife the second accused scolded the deceased in filthy language with reference to his statement that compensation could be claimed. At the very moment accused 1, 3 and 5 to 11 also came there each armed with weapons like knife, iron pipe, spear and sticks. The first accused was having a knife. The first accused cut the deceased on the head with M.O.1 knife. The second accused cut the deceased on the head twice with M.O.2, knife. The third accused beat the deceased on back M.O.3, stick. This attack on the deceased exactly in the above manner is spoken to by P.Ws. 1 to 6, 8 and 9. The trial court has accepted this evidence on the ground that it has not been shaken in cross-examination. He however, disbelieves the presence of the third accused and the overt acts attributed to her on the ground that it was no place for a woman. Eventhough it is a case of two warring groups and eventhough the origin and genesis of the commencement of the fight between the two groups has not been truthfully brought out by the prosecution, we have no materials to disbelieve the assertion of all the witnesses P.Ws.1 to 6, 8 and 9 that the first and the second accused cut the deceased on the head with knives M.Os. 1 and 2. It has to be remembered that the presence of most of the prosecution witnesses and the injuries caused to them as also mentioned in the First Information Report Ex.P-1 recorded at about 10.30 p.m. at the Kadampuliyur Police Station. It has to be remembered that P.W.6 was a law student studying at Bangalore. He had already completed B.A. Degree examination. It may be that the accused party had no specific motive to attack the deceased because the goat’s leg was only broken by P.W. 10 and his sister. It is hard to believe that a person who suggested the claim of compensation in a very casual manner could be chosen as the target for the ventilation of anger of the accused party. It is hard to believe that a person who suggested the claim of compensation in a very casual manner could be chosen as the target for the ventilation of anger of the accused party. There is evidence to show that there has been a long-standing mis-understanding and mis-trust between the two groups for some reason or other. For instance, P.W. 1 has admitted that there was a case in the year 1980 relating to the assault by the first accused, seventh accused and the brother of the first accused on the person of P.W.1 and the Judicial Magistrate ultimately acquitted the case. About two months prior to the occurrence P.W.1’s brother Govindasamy had given a complaint against the first accused and the same was pending enquiry before the Judicial Magistrate, Panruti. In Ex.D-1 the second accused had made a complaint that he was informed by the first accused that his brother-in-law Kasinathan, fourth accused, was being beaten. He rushed to the place and saw P.W.6, P.W.8 and P.W.2 were beating the fourth accused. When he tried to separate P.W.6 went into his house brought a ‘Koduva Kathi’ and stabbed the second accused on the forehead, head and cheek. P.W.8 brought a pickaxe and hit the second accused on the right and left shoulder as well as on his back. At the risk of repetition we have to state that the prosecution has not cared to explain the injuries found on the second accused which cannot be denied because of the wound certificate given by the Doctor at the Government Hospital, Cuddalore. It is worthwhile at this stage to look into the wound certificate. The injuries found on the second accused at 6.20 a.m. on 5. 1985 are as follows: “1. An incised wound 4 x 1 x 1 cms. over the right parietal fractured region blood-staining. 2. An abrasion 1 x 1/2 cm. over the fore-head right side. 3. An abrasion 1 x 1/2 cm. over the Zygomah region with right side. 3 cm. below and lateral to right lower eyelid. 4. A contusion 4 x 2 cm. with abrasion 1/2 x 1/4 cm. over the back of right elbow. 5. A linear contusion oblique in directs 9 x 11/2 cms. over the back starting from right side in the upper part and crossing the mid-line and ending at the left side Red in colour. 6. 4. A contusion 4 x 2 cm. with abrasion 1/2 x 1/4 cm. over the back of right elbow. 5. A linear contusion oblique in directs 9 x 11/2 cms. over the back starting from right side in the upper part and crossing the mid-line and ending at the left side Red in colour. 6. A contusions 5 x 2 cm. on the value of the right shoulder without discolouration.” The Doctor has also recorded that the injuries were caused at 8.15 p.m. on 5. 1985 by a ‘Koduval’ and Kadapparai at Nadu Street of ‘Pavaikulam village. Though the injuries are categorised as simple we cannot forget the fact that the first injury was an incised wound on the parietal fractured region. Abrasion and contusions were also found on the person of the second accused. These injuries indicate the use of weapons like ‘Koduval, Kadapparai’ and sticks. According to the prosecution, there was a tube-light burning on the street. Therefore, it cannot be assumed that the second accused suffered the injuries on account of some mistaken identity in the free fight that was going on. However, we have to keep in mind the fact that only the second accused is said to have been injured among all the accused and their supporters. In other words, it is quite possible that one or two of the prosecution witnesses had been armed with weapons and in retaliation they could only attack one of the accused party namely, the second accused. But the prosecution cannot leave the court guessing on such important matters. P.W.5 has admitted that after he received injuries from the 14th accused he saw that the second accused had received injuries on his head, but he conveniently says that he did not know as to how the injuries were caused on the second accused. Except this witness no other witness has spoken to the injuries on head of the deceased. The possibility of a free fight with the accused party being the aggressors, appears to be the only conclusion which the court can draw from the evidence on record. As rightly pointed out by the learned Public Prosecutor the deceased and the prosecution witnesses viz., P.Ws. 1, 5, 6 and 8 were talking at a place very near Easwaran Koil when the accused party entered the scene of occurrence. As rightly pointed out by the learned Public Prosecutor the deceased and the prosecution witnesses viz., P.Ws. 1, 5, 6 and 8 were talking at a place very near Easwaran Koil when the accused party entered the scene of occurrence. According to Ex.D-1, the fourth accused was being beaten by P.Ws.2, 6 and 8 and then only the first and the second accused appeared at the scene. We are therefore, unable to accept the theory of the accused party forming themselves into an unlawful assembly and that they came there with the intention of causing murder of the deceased. It may be that they assembled without any unlawful ideas, but subsequently became an unlawful assembly only for the purpose of rioting and not for committing any other offence. While on this aspect of the case we can as well discuss the prosecution case that the common object of the unlawful assembly was to cause the murder of the deceased Dhanavel. There is absolutely no evidence to support this case of the prosecution. In fact, we have already pointed out that there could not have been any grievance for the accused party against the deceased Dhanavel on account of the quarrel relating to the loss of the goat’s leg belonging to the second accused. The facile assumption by the trial Judge that merely because accused 4 to 14 were present in the scene of occurrence and the first and the second accused had caused the murder of Dhanavel, it must be presumed that accused 4 to 14 had also participated in the common object of murdering the deceased Dhanavel, though it was carried out by two of the members of the unlawful assembly. We are of the opinion that on the facts and circumstances of the case the maximum that one can deduce from the evidence of the prosecution witnesses is that the assembly at the scene of occurrence became unlawful only for the limited purpose of using force and violence with deadly weapons. In other words, if at all, an offence punishable under Sec. 148, I.P.C. has alone been made out by the prosecution. There is absolutely no evidence for invoking Sec. 149, I.P.C. and holding that the fourth accused to 14th accused are also responsible for the action of the first and the second accused, in cutting the head of the deceased Dhanavel with knives M.Os.1 and 2. There is absolutely no evidence for invoking Sec. 149, I.P.C. and holding that the fourth accused to 14th accused are also responsible for the action of the first and the second accused, in cutting the head of the deceased Dhanavel with knives M.Os.1 and 2. In coming to this conclusion we are also impelled by the overt acts attributed to each of the accused of beating one or other of the prosecution witnesses and causing mostly simple injuries. We are unable to decipher any identity of purpose in the various attacks of the respective accused. 16. So far as the overt acts attributed to the first and the second accused, there is absolutely no doubt, that both of them armed with knives and the first accused cut the head of the deceased Dhanavel with M.O.1 and the second accused cut the head of the deceased twice with M.O.2. These overt acts attributed to the first and the second accused have been uniformly spoken to by P.Ws. 1 to 6, 8 and 9. No doubt, it is argued by the appellants that their evidence is parrot like and in a case of two warring groups it would be unsafe to rely on such an evidence. We do not accept this argument because whatever be the enmity between the two groups, no witness will go to the extent of swearing that the fatal cuts were given by one or other of the accused. Nothing has been elicited in cross-examination as to why the prosecution witnesses should choose the first and the second accused alone for attributing the overt acts on the deceased. Absolutely, nothing has been elicited to suggest that the prosecution witnesses were biased against the first and the second accused among the entire group of accused numbering 14, when especially there is the further evidence that others were also wielding knives like the accused 8, 6 and 14. We have therefore, absolutely, no doubt in our mind, that the first and the second accused caused those injuries as spoken to by the prosecution witnesses. 17. However, learned Senior Counsel, for the appellant, Mr.N.T. Vanamamalai laid considerable stress on the evidence of the Doctor P.W.11 to create a suspicion on the theory that the first and the second accused caused the head injuries. The argument is that P.W. 11 who examined the deceased Dhanavel at 11.25 p.m. on 5. 17. However, learned Senior Counsel, for the appellant, Mr.N.T. Vanamamalai laid considerable stress on the evidence of the Doctor P.W.11 to create a suspicion on the theory that the first and the second accused caused the head injuries. The argument is that P.W. 11 who examined the deceased Dhanavel at 11.25 p.m. on 5. 1985 at the Government Hospital, Panruti, has stated in his evidence that the injuries were “alleged to have been caused by three known males with knife, pipe, spear at about 8.00 p.m. on 5. 1985.” If three known males had caused the injuries as above stated, each of them could have been in possession of only one weapon referred to by P.W. 11: In other words, according to Mr.N.T. Vanamamalai, learned Senior Counsel, one male was having a knife, one male was having pipe and the third male was having a spear and it is only these three persons who attacked the deceased. In the absence of any evidence to show which of the accused between the first and the second accused who had caused the fatal injuries, it is suggested that the benefit of doubt must go to the only surviving accused namely the second accused. We have already referred to the fact that the first accused is no more. No doubt, there was no motive of P.W. 11, who have made those entries in the Accident Register Ex.P-2. We have also perused Ex.P-2 and the same entries are contained in the said document. We have given our anxious consideration to the argument of learned Senior Counsel Mr.N.T. Vanamamalai. When we go through the entire evidence of P.W.11 we feel that the argument of the defence counsel falls to the ground. This is because between 11.25 p.m. and 12.15 a.m. that is within a period of 50 minutes P.W.11 had examined the deceased, P.W.2, P.W.3, P.W.5, P.W.1 and P.W.4 and had noted down the injuries in Exs.P-2 and P-4 to P-8. As against each person P.W.11 says that the injuries were said to have been inflicted by three known males or two known males or four known males with pipe, knife and stick. Certainly, we cannot impute the Doctor, P.W.11 with any mathematical accuracy in making the entries and thus pin him down to such entries for the purpose of falsifying the prosecution case. Certainly, we cannot impute the Doctor, P.W.11 with any mathematical accuracy in making the entries and thus pin him down to such entries for the purpose of falsifying the prosecution case. In our opinion, it would be like “missing the wood for the trees”. We therefore, reject this argument of learned Senior Counsel and the consequent inference that is sought to be drawn to the effect that only the first or second accused could have used the knife on the head of the deceased. There is no other circumstance which would enable us to hold that the first and the second accused were not responsible for the injuries inflicted by them on the head of the deceased with M.Os.1 and 2. The first three injuries found on the deceased are incised wounds on the head of the deceased and they are clearly relatable to the overt acts of the first and the second accused. The Doctor, P.W.13 who conducted the post-mortem on the deceased has opined that the deceased would appear to have died of shock and haemorrhage due to head injury. The Doctor has also opined that injury Nos. 1 and 3 could have been caused by a weapon like M.O.2 and injury No.2 could have been caused by a weapon like M.O.1. We therefore, strongly feel that the first and the second accused cannot escape the consequence of their cutting the head of the deceased with M.Os.1 and 2. 18. However, the question still remains as to whether the offence made out is punishable under Sec. 302, I.P.C. or 304, I.P.C. The trial Judge has assumed that the injuries were caused with the intention to murdering the deceased Dhanavel. Similarly, the trial Judge has also held that all the other accused namely accused 4 to 14 are also liable for the murder of the deceased Dhanavel by virtue of Sec. 149, I.P.C. 19. In this connection it is worthwhile to keep in mind certain decisions cited on behalf of the appellants. In Dharman v. State of Punjab, A.I.R. 1957 S.C. 324: 1957 Crl.L.J. 420, the facts were more or less similar. In that case, the accused party demolished a lime crushing machine, when two women intervened and that they were assaulted by the accused. One ‘M’ person seeing the occurrence ran to the place where the deceased was working and informed him. In that case, the accused party demolished a lime crushing machine, when two women intervened and that they were assaulted by the accused. One ‘M’ person seeing the occurrence ran to the place where the deceased was working and informed him. The deceased arrived at the scene with two others. It is at that time that a fight ensued and in the course of the fight the deceased received fatal injuries. The Supreme Court upheld the findings of the Sessions Judge and the High Court to the extent that the injuries on the deceased and two others were not inflicted in furtherance of a common object. Observed the Supreme Court. “The result of this conclusion was that so far as the second incident is concerned, each of the accused was responsible for his own act and nothing more.” The Supreme Court proceeded to hold that the Exception 4 to Sec. 300, I.P.C. would come to the rescue of the accused inasmuch as there was no pre-meditation and the injury on the deceased caused in a sudden fight. In Lakshmi Singh v. State of Bihar, A.I.R. 1976 S.C. 2263: 1976 Crl.L.J. 1736, the Apex Court has criticized the courts below for not making the necessary inference for the non-explanation of the injuries sustained by the accused. It would be otherwise, if the injuries were superficial and minor. We have already extracted the wound certificate relating to the second accused and we are not inclined to hold that the injuries were superficial or minor. In Surinder Kumar v. Union Territory, Chandiarh, A.I.R. 1989 S.C. 1094, there was a heated argument between the accused party and the deceased party. One of the persons is said to have showered filthy abuses. The accused thereupon went to the kitchen returned with a knife and inflicted one blow on the neck of one of the witnesses. There was a melee in which the accused inflicted three knife blows on another who succumbed to the injuries. On the above facts, the Apex Court held that the accused was entitled to the benefit of Exception 4 to Sec. 300, I.P.C. The decision in Bachan Singh v. State of Punjab, A.I.R. 1993 S.C. 305 is more appropriate so far as the formation of an unlawful assembly and the consequences of an offence committed by such an assembly. On the above facts, the Apex Court held that the accused was entitled to the benefit of Exception 4 to Sec. 300, I.P.C. The decision in Bachan Singh v. State of Punjab, A.I.R. 1993 S.C. 305 is more appropriate so far as the formation of an unlawful assembly and the consequences of an offence committed by such an assembly. That was also a case of the parties calling another by bad name. Within five or ten minutes a number of persons gathered armed with weapons. One of the persons caused the blow with a spear to the deceased. Others . intervened to rescue the deceased and more injuries were inflicted on some of the prosecution witnesses. The Apex Court notices the fact that some of the party belonging to the accused group had also sustained injuries and the only conclusion that could be arrived at that there was a free fight between the two groups. Observed the Supreme Court: “It is the settled law that in a free fight each accused will be liable for the individual act attributed to the particular accused.” Ultimately, the Apex Court gave the benefit of Exception 2 to Sec. 300, I.P.C. and held him liable for punishment under Sec. 304, Part I, I.P.C. 20. On an analysis of the above judgments in juxtaposition with the facts of the present case we have no doubt in our mind that it was a case of free fight after the infliction of the injuries by the first and the second accused or after P.Ws.2, 6 and 8 caused injuries on the fourth accused and on the second accused when he intervened to separate them by using knife and pickaxe. Therefore, following the judgments of the Supreme Court each of the accused should be held liable only for the individual overt acts attributed to them. It is in this sense that we hold that the first and the second accused alone are responsible for the murder of the deceased Dhanavel. Equally, we find all the other accused are responsible only for the injuries inflicted by them on one or other of the prosecution witnesses. 21. It is in this sense that we hold that the first and the second accused alone are responsible for the murder of the deceased Dhanavel. Equally, we find all the other accused are responsible only for the injuries inflicted by them on one or other of the prosecution witnesses. 21. The next question is the first and the second accused are liable for conviction under Sec. 302, I.P.C. or whether they are entitled to the benefit of either Exception 2 or Exception 4 of Sec. 300, I.P.C. We have already adverted to two Supreme Court judgments where in one case Exception 4 was held applicable and in another case Exception 2 was held applicable on almost similar facts. In this case admittedly, one of the accused party had suffered injuries and that is the second accused. Therefore, restricting ourselves to the case of the second accused we have no doubt in our mind that the prosecution case had failed to explain injuries on him and consequently we have to give credence to the wound certificates Exs.D-1 and D-2. In this sense the case of the second accused is that he was told by the second accused that his brother-in-law, the fourth accused, was being beaten by P.Ws.2, 6 and 8. Therefore, he went to intervene and save his brother-in-law, the fourth accused. In the bargain P.W.6 cut him with a knife and P.W.8 hit him with a pickaxe. Under such circumstances, certainly he had a right of private defence to save himself. But he had gone to the extent of inflicting two injuries on the head of the deceased which were undoubtedly injuries caused with the knowledge that they were likely to cause the death of the person. In other words, we are inclined to accept the argument of learned Senior Counsel, Mr.N.T. Vanamamalai that if at all the second accused can be said to have exceeded the right of private defence because the second accused had in exercise of good faith of defending himself and the fourth accused caused the death of Dhanavel, by exceeding his right of private defence. Alternatively, we have already held that there was no premeditation to cause the death of the deceased Dhanavel and it was only during the sudden fight which ensued and in the heat of passion the second accused had inflicted the fatal injuries. Alternatively, we have already held that there was no premeditation to cause the death of the deceased Dhanavel and it was only during the sudden fight which ensued and in the heat of passion the second accused had inflicted the fatal injuries. It cannot be said that the second accused had taken undue advantage or acted in a cruel or unusual manner. Therefore, as in the cases decided by the Supreme Court, we have also given the benefit of Exceptions 2 and 4 to Sec. 300, I.P.C. to the second accused and held him liable for culpable homicide not amounting to murder punishable under Sec. 304, Part I, I.P.C. 22. So far as the charge against the other accused for having caused simple injuries on the prosecution witnesses punishable under Sec. 324, I.P.C. and the charge against the fifth accused and the sixth accused for having caused grievous injuries under Sec. 326, I.P.C. we find that the trial Judge has referred to their separate overt acts and the medical evidence and concluded that the offences had been made out. Since no serious argument was advanced questioning those findings we do not propose to go through the same once over again and affirm the findings of the trial Judge. 23. In fine we set aside the conviction and sentence on all the accused/appellants under Sec 302, I.P.C. read with Sec. 149, I.P.C. We hold the second accused guilty of an offence punishable under Sec. 304, Part I, I.P.C. and impose on him a sentence of seven years rigorous imprisonment. The conviction of the fourth accused under Secs. 324 and 148, I.P.C. as well as the punishment of one year rigorous imprisonment respectively is confirmed. The conviction and sentence imposed on the fifth accused for an offence under Secs. 326 and 148, I.P.C. for two years and one year rigorous imprisonment are confirmed. The conviction and the sentence imposed on the sixth accused for an offence punishable under Sec. 148, I.P.C. and the sentence of one year rigorous imprisonment are confirmed. The conviction and the sentence imposed on the seventh accused for the offence punishable under Sec. 148, I.P.C. and the sentence of one year rigorous imprisonment are confirmed. The conviction and sentence imposed on the eighth accused under Secs. 324, I.P.C. and 148, I.P.C. and the sentence of one year rigorous imprisonment are confirmed. The conviction and the sentence imposed on the seventh accused for the offence punishable under Sec. 148, I.P.C. and the sentence of one year rigorous imprisonment are confirmed. The conviction and sentence imposed on the eighth accused under Secs. 324, I.P.C. and 148, I.P.C. and the sentence of one year rigorous imprisonment are confirmed. The conviction on the ninth accused under Sec. 148, I.P.C. and the sentence of one year rigorus imprisonment are confirmed. The conviction and sentences the 11th accused under Secs. 324 and 148, I.P.C. and the sentence of one year rigorous imprisonment each are confirmed. The conviction and the sentence imposed on the 12th and the 13th accused for an offence punishable under Sec. 147, I.P.C. and the sentence of six months rigorous imprisonment are confirmed. The conviction and the sentence imposed on 14th accused for an offence punishable under Secs. 326 and 148, I.P.C. and the sentence of one year rigorous imprisonment each, are confirmed. The appeal as against the first appellant (first accused) and the ninth appellant (10th accused) shall abate under Sec. 394, Crl.P.C. The appeal is partly allowed as above.