Judgment :- Janarthanam, J. In respect of series of three incidents, that took place at about 3.30 p.m. on 210. 1984 at East Koppuchithampatti, constituting a single transaction, the then Inspector of Police, Panthalgudi Circle, filed a final report under Sec. 173(2), Crl.P.C for various offences against 26 accused, which was taken on file, as P.R.C. No.3/85 on the file of the Judicial Second Class Magistrate, Aruppukottai. 2. On committal, Court of Session, Ramanathapuram Division at Madurai, took the case on its file as S.C. No.198 of 1986. It appears, one of the accused, namely, accused-18 Bose jumped bail and was absconding. Consequently, the case against him was split up and numbered as S.C. No.40 of 1987. 3. Before trial commenced, accused 18 appeared to have been apprehended and made available for trial. Consequently, learned Sessions Judge, clubbed the case in S.C. No.40 of 1987 with S.C. No. 198 of 1986, maintaining the original array of all the accused. 4. On trial, accused 1 and 2 were found guilty under Secs.323 and 426, I.P.C., convicted thereunder and each of them sentenced to rigorous imprisonment for six months for an offence under Sec. 323, I.P.C. and one month rigorous imprisonment for an offence under Sec.426, I.P.C. Accused 6 was found guilty under Secs.302 and 324, I.P.C, convicted thereunder and sentenced to imprisonment for life under Sec.302, I.P.C. and to rigorous imprisonment for one year for an offence under Sec.324, I.P.C. Accused 8 and 18 were found guilty under Sec.323, I.P.C, convicted thereunder and each of them was sentenced to rigorous imprisonment for six months. The sentences imposed on all the accused were ordered to run concurrently. Rest of the accused, namely, accused 3 to 5, 7, 9 to 17 and 19 to 26 were found not guilty of the Offences with which they stood charged and were acquitted thereof. 5. Aggrieved by the said conviction and sentence, the present action had been resorted to by accused 1, 2, 6, 8 and 18. 6. Brief facts are: .(a) East Koppuchithampatti; North Koppu Chithampatti and South Koppuchithampatti, it is said, are adjacent villages, lying within the jurisdiction of Panthalgudi police station. Most of the inhabitants of East Koppuchithampatti belonged to Naicker community. Naickers of the said Village, it is said, are land owning class. Major inhabitants of North Koppuchithampatti and South Koppuchithampatti, it is said, are Thevars. Most of the inhabitants of East Koppuchithampatti belonged to Naicker community. Naickers of the said Village, it is said, are land owning class. Major inhabitants of North Koppuchithampatti and South Koppuchithampatti, it is said, are Thevars. The land owning Naickers, it is said, had been appointing watchmen to guard their properties in the village from among Thevar community, emerging from North Koppuchithampatti and South Koppuchithampatti. .(b) It so happened that sometime prior to the occurrence, which event happened on 210. 1984, there were unmanageable petty thefts in the Village. Consequently Naickers of East Koppuchithampatti decided to remove watchmen emerging from among the community of Thevars of North Koppuchithampatti and South Koppuchithampatti and appointed One Periyannan, as the watchman to guard the properties. This, it is said, infuriated Thevars belonging to North Koppuchithampatti and South Koppuchithampatti. .(c) Some one month prior to the occurrence. Naickers convened a meeting at the Bajanai Madam in their Village. Accused 1, 19 and some others of their camp came to the Bajanai Madam and issued threats to Naickers proclaiming, “When we, the adjacent villagers are available to guard your properties, how dare enough you people are, to appoint a watchman from a different village and you people are going to reap the consequences for such an action.” .(d) There is a Kaliamman temple at East Koppuchithampatti. It appears during the month of October of every year, a festival was to be held in the said temple. During the celebration of such a festival, a pandal was to be put up in front of the temple and it was incumbent upon the dhobi of the said Village to decorate the pandal during such festival times with clothes. In the year 1984, the festival in the said temple took place on 210. 1984. Accused 7 was then functioning as the dhobi of the said village. It was his duty to decorate the pandal put up in front of the temple for festival with clothes. When he was requested to do so, by the Naickers of the said village, he refused to do so. .(e) The next day, namely, 210. 1984was Deepavali day. During Deepavali festival, it was customary for the villagers to provide food to the dhobi of the village. When he was requested to do so, by the Naickers of the said village, he refused to do so. .(e) The next day, namely, 210. 1984was Deepavali day. During Deepavali festival, it was customary for the villagers to provide food to the dhobi of the village. Since the dhobi refused to decorate the pandal put up in front of Kaliamman temple for the celebration of the festival, Naickers of the said village refused to provide the customary food to accused 7, during Deepavali festival. (f) On the day of the occurrence at 3 p.m., accused 7 was stated to have been sent for through his uncle Pandi by One Periyannan, the then watchman, to go over to Kaliamman temple. Accordingly, accused 7 went there. The said watchman appeared to have questioned him as to why he had not decorated the pandal as usual during the celebration of Kaliamman temple festival. Accused appeared to have explained the circumstances, which impelled him not to do so. Not having satisfied with the explanation so offered. The said watchman appeared to have injured him by infliction of certain stabs by means of a velstick on his person. When his wife, Lakshmi came to his rescue, she was also stated to have been stabbed by the said watchman. It appears, one Chinnathambi was also said to have been injured in the said occurrence. .(g) There is a post office in East Koppuchithampatti. The said post office, it is said, had been accommodated in a portion of the residential house of P.W.1, who, it is said, is the Branch Postmaster. Adjacent to the Post Office is situate the residential house of one Subbiah Naicker. .(h) At about 3.20 p.m., P.Ws.3, 4 and 6 to 9 were stated to be standing in front of Subbiah Naicker’s house and conversing with each other. At that time, a crowd of about hundred, persons, under the leadership of accused 1, arming themselves with velstick, aruval, stick, theratti-stick, Knife and iron rod, marched towards the house of Subbiah Naicker. In the said crowd, apart from accused 1, accused 2, 4 to 12, 14 to 19 and 21 were also found. This was noticed by P.Ws. 3 to 7. In the said crowd, apart from accused 1, accused 2, 4 to 12, 14 to 19 and 21 were also found. This was noticed by P.Ws. 3 to 7. .(i) The crowd moved further and stood in front of the Branch Post Office and accused 1 was stated to have proclaimed pointing out to P.W.1, “Whatever happens, he is the person who gives information first in point of time to the police. Therefore, cut the telephone wires.” Then accused 1 and 2 were stated to have cut the telephone wires of the post office by means of two thoratti sticks, (M.Os. 1 and 2), they were then possessing. The cut telephone wires is M.O.3. Accused 3, 4 and 5, it is said, had damaged the tiles on the roof of the post Office. P.W.1 fearing perilous consequences ensuing to his life, ran away from there. The cutting of telephone wires and damaging the tiles of the post Office was stated to have been apart from P.W.1, by P.W.2. .(j) The crowd then moved towards the house of Subbiah Naicker. Accused 6 was then stated to have proclaimed, “with the aid of the watchman, Naickers beat dhobi (accused 7). Therefore, they should be done away with”. So saying, accused 6, with the aid of M.0.4 iron rod, which he was having in his hand, beat on the left parietal region of One Venkataraman alias Jagannathan (since deceased). The said Venkataraman alias Jagannathan was also state to have been attacked by accused 7 by means of a stick and the attack so made was stated to have been warded off by the said victim in order to avoid any injury being caused to him, in the sense of catching hold of the stick. Accused 6 was also stated to have beaten P.W.4 with M.O.4, with the result, the victim, P.W.4 was stated to have sustained injuries on his forehand and head. Accused 18 was stated to have beaten by means of an iron rod on his left side head. Accused 2 was stated to have hurled a stone and the stone so hurled hit on the chest of P.W.7, thereby causing a contusion. Again accused 6 with some M.0.4 rod was stated to have hit on the right cheek of P.W.7 with the but and of M.0.4 iron rod, thereby causing an injury. Accused 2 was stated to have hurled a stone and the stone so hurled hit on the chest of P.W.7, thereby causing a contusion. Again accused 6 with some M.0.4 rod was stated to have hit on the right cheek of P.W.7 with the but and of M.0.4 iron rod, thereby causing an injury. Accused 1 was stated to have hurled a stone at P.W.6. The stone so thrown hit on his left cheek thereby causing an injury. Accused 4 and 8 were also stated to have beaten P.W.6 by means of iron rods. The attack so made by accused 8 was stated to have caused an injury on his left chest. However, the attack made by accused 4 did not culminate in causing any injury on his person, as he has silided away from such an attack. Accused 9 was stated to have inflicted a stab on the left wrist of P.W.5 by means of a knife. Accused 10 was also stated to have attacked P.W.5 by means of a stick, with the result he sustained two contusions, one on his right hand and another on his back on his left side. Accused 2 was stated to have beaten P.W.9 on his nose by means of a stick, causing him bleeding injury. Accused 6 was also stated to have beaten P.W.9 on his head by means of an iron rod, thereby causing him a bleeding injury. (k) As a consequence, his dothi (M.O.10) and shirt (M.O. 11) got drenched with blood. The persons in the crowd raised a hell of a noise to cut, stab and demolished the house of the President and so saying, all of them moved towards the house of P.W.16, then President of the Village. This sort of an incident was stated to have been witnessed by P.Ws.3 to 7. In the occurrence, P.Ws.8 and 9 was also stated to have been injured. Accused 18 was stated to have beaten P.W.8 on his head by means of a stick, thereby causing him bleeding injuries, as a consequence of which, his dhoti (M.O.8) and towel (M.O.9) got drenched with blood. P.W.9 faced an attack at the hands of accused 2 and 6. (1) The persons in the crowd then marched towards the house of P. W. 16. P.W.9 faced an attack at the hands of accused 2 and 6. (1) The persons in the crowd then marched towards the house of P. W. 16. P. W. 16, on sighting the crowd fearing for his life at their hands, went to the house of one Govindaraja Naicker. P. W. 16, it is said, is a lame person. When the mob came near his house, accused 1 was stated to have proclaimed, “Lame person (thereby meaning P.W. 16) was not to be found and he deserved to be cut”. Thereafter, accused 22 to 26 caused extensive damage to his house, in the sense of not only breaking open the door, but also breaking the tiles and other utensils in the house. (m) P.W.21 was the then Head Constable attached to Pandhalkudi Police Station. At 5 p.m. on 210. 1984, while he was in charge of the police station, accused 7, along with his wife appeared before him and lodged an information, Ex.P-29. On the strength of Ex.P-29, P.W.21 registered a case in Crime No. 148/ 84 under Sec.324, I.P.C. Ex.P-30 is the printed F.I.R. He took up further investigation of the case. .(n) At the same time, the injured Venkataraman alias Jagannathan, along with P.Ws.3 to 9, appeared before P.W.21 and lodged an information Ex.P-2. On the strength of Ex.P-2, he registered a case in Crime No. 149 of 1984 for alleged offences under Secs. 147, 148, 323, 324, 337 and 427, I.P.C. He sent the injured to the Government Hospital, Aruppukottai for treatment. Ex.P-28 is the printed F.I.R. .(o) He took up furtherinvestigation of the case. He inspected the scene of occurrence in front of Subbiah Naicker’s house, and prepared Ex.P-15 observation mahazar. He drew a rough sketch, Ex.P-32. He seized from there M.O.20 series broken tiles; M.O.21 series stones numbering four, under Ex.P-20 mahazar. Exs.P-15 and P-20 were attested by P.W.17. (p) P.W.10 was the then Civil Assistant Surgeon attached to the Government Hospital, Aruppukottai. At 6.55 p.m. he examined Venkataraman alias Jagannathan and treated him for the injuries he found on his person. He initially admitted him as an inpatient in the ward. Ex.P-3 is the extract from the accident register. He then referred the victim Venkataraman alias Jagannathan for further treatment and management to the Government Rajaji Hospital, Madurai. At 6.55 p.m. he examined Venkataraman alias Jagannathan and treated him for the injuries he found on his person. He initially admitted him as an inpatient in the ward. Ex.P-3 is the extract from the accident register. He then referred the victim Venkataraman alias Jagannathan for further treatment and management to the Government Rajaji Hospital, Madurai. .(q) (i) At 7.10 p.m., he examined P.W.5 and treated him for the injuries, he found on his person, Ex.P-4 is the wound certificate he issued, (ii) At 7.15 p.m. he examined P.W.4 and treated him for the injuries. Ex.P-5 is the wound certificate, (iii) At 7.25 p.m., he examined P.W.9 and treated him for the injuries. Ex.P-6 is the wound certificate, (iv) At 7.45 p.m., he examined P.W.7 and treated him for the injuries. Ex.P-7 is the wound certificate, (v) At 7.50 p.m. he examined P.W.8 and treated him for the injuries. Ex.P-8 is the wound certificate. .(vi) At 8 p.m. he examined P.W.6 and treated him for the injuries. Ex.P-9 is the wound certificate he issued. .(r) P.W.21 rushed and reached the Government Hospital, at about 10 p.m. Before the victim Venkataraman alias Jagannathan was taken to the Government Rajaji Hospital at Madurai for further treatment and management, he seized from him dhoti (M.O.12); towel (M.O.13) another towel (M.O.14) and pieces of cloth (M.O.15 series) He, likewise, seized from P.W.8 dhoti (M.0.8) and towel (M.O.9). He seized from P.W.4 lungi (M.O.5). He seized from P.W.5 dhoti (M.O.6) and shirt (M.O.7). He seized from P.W.9 dhoti (MO.10 and shirt (M.O. 11). All these seizures were effected under the cover of Ex.P-17 mahazar attested by P.W.17. .(s) On 210. 1984, as per the instructions of the higher echelons in the police station, he altered the case into one under Sec.307, I.P.C. He prepared express reports and sent the same to the concerned officials. Ex.P-33 is the express report. .(t) The victim Venkataraman alias Jagannathan was admitted at Government Rajaji Hospital, Madurai on 210. 1984 at 6.35 a.m. in the accident ward by P.W. 11, the then Civil Assistant Surgeon, who caused x-ray to be taken for further treatment and management. .(u) At 10 a.m. on the strength of the information lodged by P. W. 16, P.W.21 registered a case in Crime No. 150 of 1984 for alleged offences under Secs. 1984 at 6.35 a.m. in the accident ward by P.W. 11, the then Civil Assistant Surgeon, who caused x-ray to be taken for further treatment and management. .(u) At 10 a.m. on the strength of the information lodged by P. W. 16, P.W.21 registered a case in Crime No. 150 of 1984 for alleged offences under Secs. 147, 148, 448, 427 and 395, I.P.C. At 2 p.m. on the strength of the information lodged by P.W.1, Ex.P-1, he registered as case in Crime No. 151 of 1984 for alleged offences under Secs. 147, 148, 353, 448 and 427, I.P.C. Ex.P-35 is the printed F.I.R. He then inspected the house of P.W.16 and prepared Ex.P-16 observation mahazar. He also drew a rough sketch Ex.P- 36. He seized from there, M.O.16 series broken tiles; (four in number) and M.O.17 series stones (four in number) under Ex.P-18. He also inspected the place in front of the post office and prepared Ex.P-21 observation mahazar. He drew a rough sketch Ex.P- 47. He seized from there telephone wires (M.O.3); broken tiles three in number (M.O.18 series) and stones three in number (M.O.19 series) under Ex.P-19 mahazar. At 6.15 p.m., he searched the house of accused 1 and seized M.O.I from his house under house search list, Ex.P-22. At 6.30 p.m., he searched the house of accused 2 and seized from there M.O.2 under house search list, Ex.P-23. Exs.P-16, P-18, P-19 and P21 were attested by P.W. 17 while Exs.P-22 and P-23 were attested by P.W.18. .(v) The doctor P.W. 12, then Assistant Professor of Neuro Surgery attached to the Government Rajaji Hospital, Madurai performed surgery in rather in bid to save his life. Despite best of treatment, the victim Venkataraman alias Jagannathan, admitted in the accident ward, expired at 4.30 p.m. The doctor P.W. 13, Civil Assistant Surgeon attached to the said hospital then on duty sent Ex.P-10 death intimation to the outpost police station. .(w) On the same day at 8.50 p.m., P.W.21 received VHF message as to the death of the victim Venkataraman alias Jagannathan in the accident ward of the Hospital. He immediately altered the case into one under Sec.302, I.P.C; prepared altered express F.I.Rs. and sent the same to the concerned officials. Ex.P-34 is the altered express F.I.R. (x) P.W.22 was the then Inspector of Police. At 11 p.m. on 210. He immediately altered the case into one under Sec.302, I.P.C; prepared altered express F.I.Rs. and sent the same to the concerned officials. Ex.P-34 is the altered express F.I.R. (x) P.W.22 was the then Inspector of Police. At 11 p.m. on 210. 1984, he received the F.I.R. concerned in Crime No. 149 of 1984. He took up further investigation of the case. He rushed and reached the Government Rajaji Hospital at 7.15 a.m. on 210. 1984. Between 7.15 and 10.45 a.m. he held inquest over the body of the victim- deceased Venkataraman alias Jagannathan. Ex.P-38 is the inquest report. During inquest, he examined P.Ws.3 to 7 and others. He sent the body of the deceased through constable, P.W. 19, along with a requisition, Ex.P-11 for the purpose of autopsy. He also examined P.Ws.7, 15 and 19. .(y) P.W. 14 was the then Tutor in Forensic Medicine, Madurai Medical College, Madurai. At 11.15 a.m., he commenced autopsy over the body of the deceased. Ex.P-12 is the postmortem certificate he issued. He would opine that injury No. 1 found described in Ex.P-12 could have been caused by beating with M.O.4 iron rod. He would further opine that external injury No.1 with corresponding internal injury is sufficient in the ordinary course of nature to cause death. .(z) after the autopsy was over, the constable P.W. 19 seized from the body dhoti (M.O.22) and waist cord (M.O.23) and handed over the same at the Police station. (aa) On 210. 1984, on credible information, P.W.22 went to Alampatti Village and arrested accused 1, 2, 4, 5, 7, 9 to 11, 13 to 16 and 19 at 10.30 p.m. and brought them to the police station at 3.15 a.m. on 210. 1984. He then sent them to court for the purpose of remand. On 310. 1984, he examined certain witnesses. On 11. 1984, he arrested accused 6 at Pattatharasi Amman temple near East Koppuchithampatti Junction Road at 4.30 p.m. in the presence of P.W. 15. On interrogation, he gave a voluntary confessional statement under Sec. 27 of the Evidence Act, of which Ex.P-13 is the admissible portion. Pursuant to the said confession, accused 6 took P.Ws.15 and 22 and produced M.O.4 kept concealed at Karuvala bush near Paulchamy Thevar garden and the same was seized under Ex.P-14 mahazar attested by P.W. 15. Then accused 6 was brought to the police station. Pursuant to the said confession, accused 6 took P.Ws.15 and 22 and produced M.O.4 kept concealed at Karuvala bush near Paulchamy Thevar garden and the same was seized under Ex.P-14 mahazar attested by P.W. 15. Then accused 6 was brought to the police station. The next day, he was sent to court for remand. He examined P.W. 15 on the same day. On 111. 1984, he arrested accused 17 and 21 near Chinnamani Spinning Mills at Pandhalkudi. He then sent them to court for remand. On 111. 1984, two accused concerned in Crime No. 150 of 1984, had been arrested and they were sent to court for remand. On 211. 1984, he sent Ex.P-24 requisition to the Judicial Second Class Magistrate’s Court, Aruppukottai for sending the incriminating material objects to the chemical examiner for the purpose of examination. (ab) P.W.20 was the then headclerk attached to the Judicial Second Class Magistrate’s Court, Aruppukottai. On receipt of Ex.P-24 requisition, as per the directions of learned Magistrate, she separately packed the incriminating material objects and sent them to the Chemical Examiner for the purpose of analysis under the original of Ex.P-25, office copy of the letter. Exs.P-26 and P-27 are respectively the reports of the chemical examiner and the serologist. (ac) On 30.11.1984, P.W.22 examined P.Ws.l 1, 13 and 14. On 12. 1984, he examined P.W.10. After completion of the investigation in Crime No. 148 of 1984 - an independent transaction, Ex.P-31 final report had been laid under Sec. 173(2), Crl.P.C. Since the case in Crime Nos. 149, 150 and 151 of 1984 were relatable to one and the same transaction, a final report under Sec. 173(2), Crl.P.C. had been laid before the Judicial Second Class Magistrate, Aruppukottai on 11. 1985 against accused 1 to 26 for alleged offences under Secs. 147, 148, 353, 336, 427, 324 and 302 read with Sec. 149, I.P.C. 7. On committal, the case had been taken on file by court of Session, Ramanathapuram Division at Madurai, as stated above. 8. The following charges were framed as against accused 1 to 26, as indicated below: Charge Number .(1) Against which accused .(2) For offences under the provisions of I.P.C. .(3) 4. Accused 6 Section 302 5. Accused 7 Section 302 read with Section 34 6. Accused 1 to 5 Section 302 read with Section 149 and 8 to 26 7. 8. The following charges were framed as against accused 1 to 26, as indicated below: Charge Number .(1) Against which accused .(2) For offences under the provisions of I.P.C. .(3) 4. Accused 6 Section 302 5. Accused 7 Section 302 read with Section 34 6. Accused 1 to 5 Section 302 read with Section 149 and 8 to 26 7. Accused 6 Section 307 (attempt to commit murder of Jaya Prakash) 8. Accused 2 and 18 Section 323 9. Accused 6 Section 324 (Causing hurt with deadly weapon to Seeni Naicker) 10. Accused 1 Section 323 (Causing hurt to Srinivasan) 11. Accused 8 Section 307 (Attempt to commit murder of Srinivasan) 12. Accused 9 Section 324 (Causing hurt to Alwarsamy) 13. Accused 10 Section 323 (Causing hurt to Alwarsamy) 14. Accused 2 Section 323 (Causing hurt to Seeni Naicker) 15. Accused 6 Section 307 (Attempt to commit murder of Seeni Naicker) 116. Accused 1 to 26 Section 427 (Causing damages to the house of Ramalinga Naicker) 117. Accused 1 to 26 Section 448 (House trespass into the house of Ramalinga Naicker) 118. Accused 1 to 26 Section 395 (Dacoity in the house of Ramalinga Naicker) 19. Perumal Naicker Jayaprakash, Alwarsamy, K.Srinivasan, C.Seeni Naicker, T.Seeni Naicker and Ramalinga Naicker, referred to in the above charges, had been respectively examined as P.Ws. 1, 4, 5, 6, 7, 9 and 16. 110. All the accused, when questioned as respects the respective charges so framed against them, denied the same and claimed to be tried. 111. The prosecution, in proof of the charges so framed, examined P.Ws.1 to 22, filed Exs.P-1 to P-38 and marked M.Os.1 to 23. 112. All the accused, when questioned under Sec.313, Crl.P.C, denied their complicity in the crime. They did not choose to examine any witness on their behalf. However, they have marked copies of accident register, namely, Ex.D-1 as relatable to one Chinnathambi, Ex.D-2 as relatable to one Lakshmi, wife of accused 7 and Ex.D-3, as relatable to accused 7, during the course of cross-examination of the doctor, P.W.10. 20.13. Learned Sessions Judge, on consideration of the materials placed and after hearing the arguments of respective learned counsel for the defence, as well as learned Public Prosecutor, however, rendered the verdict, as stated above. 214. 20.13. Learned Sessions Judge, on consideration of the materials placed and after hearing the arguments of respective learned counsel for the defence, as well as learned Public Prosecutor, however, rendered the verdict, as stated above. 214. Mr.V. Gopinath, learned Senior Counsel representing Mr.Abdul Kader Jailani, learned counsel appearing for the appellants-accused would press into service the following two submissions: .(1) The materials available on record, in the shape of evidence oral and documentary can, by no stretch of imagination, be stated to be sufficient and adequate enough to warrant the convictions and sentences, as against the appellants-accused, as had been done by the court below for the various offences; and .(2) Even otherwise, in the sense of the prosecution establishing beyond any shadow of doubt the overtacts relatable to the individual appellants-accused, even then, the overtact as relatable to accused 6, on the facts and in the circumstances, cannot at all be stated to have been done with any of the mens rea prescribed under any of the four corners of Sec.300, punishable under Sec.302, I.P.C. and if at all, his act may fall under Sec.304, Part II, I.P.C. 15. Mr.R.Raghupathi, learned Additional Public Prosecutor representing the respondent would, however, strike a discordant note. .16. We shall now enter into the arena of discussion, as respects, the tenability or otherwise of the rival submissions of either counsel. 17. No particular number of witnesses shall, in any case, be required for the proof of any fact. That in the sanguine rule, that had been incorporated under Sec. 134 of the Indian Evidence Act. Such a statutory provision is based on the golden rule that evidence has to be weighed and not to be counted. Though such a statutory rule is required to be adhered to, in all cases, in the matter of sifting and scanning of evidence for arriving at any conclusion, yet the Apex Court of this country, on occasions more than one, laid down the dictum that in a case, like rioting-cum-murder, where there is large participation of assailants, the rule is that it is incumbent upon the prosecution to prove the presence and participation of the accused, by more than two witnesses, in order to eliminate the possiblity of implication of accused by mistaken identity. This sort of rule of prudence, obviously appeared to have weighed very well in the mind of the court below in the appreciation of the evidence available on record. That perhaps was the reason for the court below to have acquitted number of accused, as many as twenty-one, facing various charges and rest content in convicting and sentencing to various offences only five of the accused, namely, accused 1, 2, 6, 8 and 18. 18. Accused 1 and 2, according to the prosecution, were responsible for cutting the telephone wires of the Branch Post Office, accommodated in a portion of the residential house of P.W. 1 and for causing certain injuries on the person of P.Ws.6 and 7. As respects the cutting of the telephone wires of the Branch Post Office, there is the clinching testimony of P.Ws. 1 to 6. This apart, the cut telephone wires, namely, M.O.3 had been recovered by P.W.21 at the scene of occurrence. Further, the thoratti sticks, that is to say, M.Os. 1 and 2 said to have been utilised by accused 1 and 2 in cutting the telephone wires, M.O.3 had been recovered by P.W.21, in the process of effecting the house search of the houses of accused 1 and 2 under house search lists, Exs.P-22 and P-23 and laterly identified by the witnesses, P.Ws.l to 6. Nothing material had been elicited in the cross-examination of P. Ws. 1 to 6 and 21, either as respects the overtacts of accused 1 and 2 in cutting the telephone wires or as relatable to the seizure of M.O.3 from the scene of occurrence or the seizure of M.Os. 1 and 2 in the process of effecting the house search of the houses of accused 1 and 2. .19. Accused 1 is said to have hurled a stone aiming at P.W.6 and the stone so hurled hit him on his left cheek, thereby causing an injury to him. This sort of an overtact on his part, is not only spoken to by the victim of assault, namely, P.W.6, but also by P.Ws.3, 5 and 7 in a cogent fashion. This apart, the ocular testimony of these witnesses receives corroborative support from the medical evidence available on record, in the shape of the testimony of the doctor, P.W. 10, coupled with Ex.P-9 wound certificate, he issued. This apart, the ocular testimony of these witnesses receives corroborative support from the medical evidence available on record, in the shape of the testimony of the doctor, P.W. 10, coupled with Ex.P-9 wound certificate, he issued. Above all, the said doctor had opined that the injury to P.W.6 could have been caused at the time and in the manner alleged and that the said injury is simple in nature. 20. Accused 2 is stated to have hurled a stone, aiming at P.W.7 and the stone so hurled also hit him on his right chest, thereby causing him an injury. This sort of an overtact, apart from being spoken to by P.W.7, P.Ws.3 to 6 would speak to such an overtact without giving any inkling of a doubt. Besides the ocular testimony of such witnesses is also ably supported by the medical evidence available on record, in the shape of the testimony of the doctor, P.W. 10, coupled with Ex.P-7 wound certificate he issued. He would opine that the injury caused to P.W.7 could have been caused at the time and in the manner alleged and that apart, the injury so caused is simple in nature. 21. So far as accused 8 is concerned, he is stated to have beaten P.W.6 with stick on his chest. This sort of an overtact on the part of accused 8 is not only spoken to by P.W.6, but such a testimony of his also received corroboration in ample measures from the direct testimony of P.Ws.3, 5 and 7. This apart, the medical evidence available on record, in the shape of the testimony of the doctor, P.W. 10 coupled with Ex.P-9 lend assurance to the ocular testimony of those witnesses. The injury so caused by such an overtact, the doctor, P.W.10, would say is simple in nature. 22. 18th accused was stated to have beaten P.W. 8 by means of a stick on his head, thereby causing an injury to him. The evidence of P.W.8 as to the causation of injury on his head by accused 18 by means of a stick receives corroboration from the ocular testimony of P.Ws.3 to 7. This apart, the medical evidence available, in the shape of the testimony of the doctor, P.W. 10, coupled with Ex.P-8 wound certificate also supports the version, as projected by the aforesaid ocular witnesses. This apart, the medical evidence available, in the shape of the testimony of the doctor, P.W. 10, coupled with Ex.P-8 wound certificate also supports the version, as projected by the aforesaid ocular witnesses. The injury so caused to P.W.8, the doctor would say, is simple in nature. .23. As to the overtacts of accused 1, 2, 8 and 18, as discussed above, it is rather crystal clear that there is ample corroboration in a large measure by more than two witnesses, apart from being supported by the medical testimony available on record. In such state of affairs there can be no manner of doubt whatever as to the presence and participation of those accused in the occurrence, as projected by the prosecution. In this view of the matter, the conviction of those accused, namely, accused 1, 2, 8 and 18 for various offences, as had been done by the court below, cannot at all be stated to be not sustainable. The sentence of imprisonment imposed upon them by the court below for the respective offences, with which they stood charged, cannot also be stated to be either harsh or excessive, calling for interference. As such, their conviction and sentence, as had been imposed upon them by the court below for various offences deserve to be confirmed. 24. What now remains to be considered is the presence and participation of accused 6 in the occurrence. According to the prosecution, accused 6 was stated to have beaten the victim- deceased on his head by means of M.O.4 iron rod, thereby causing an injury to him. This sort of an overtact had been spoken to by the victim-deceased himself in the earliest information Ex.P-2 said to have been given by him to P.W.21. This apart, P.Ws. 3 to 7 had spoken to such an overtact on the part of accused 6 in a cogent and convincing fashion, without giving any room that their evidence is not above reproach and beyond suspicion. 25. This apart, P.Ws. 3 to 7 had spoken to such an overtact on the part of accused 6 in a cogent and convincing fashion, without giving any room that their evidence is not above reproach and beyond suspicion. 25. Above all, the ocular testimony of the witnesses, as relatable to such an overtact also receives ample corroborative support from the medical evidence available on record, in the shape of the testimony of the doctors, P.Ws.10 and 14 coupled with Ex.P-3, extract from the accident register, and Ex.P-12 Post mortem certificate in the sense that the injury found on the hand of the victim-deceased could have been caused by beating with an iron rod, like M.O.4. It is thus clear that the hand that was responsible for causation of the injury on the head of the victim-deceased by means of iron rod is none-else than that of accused 6. .26. The next question, which is so moot, that arises for consideration is as to what is the offence that had been made out, on the facts and in the circumstances of the case. It is not as if the victim- deceased immediately after the receipt of the injury became unconscious. The plain fact was that he in fact, along with the injured witnesses P.Ws.3 to 7 had been to Panthalgudi police station and laid Ex.P-2 information. At that time, nobody thought that the injury he received on his head was to prove fatal subsequently. The injury received by him on his head was, after all, a lacerated wound, measuring 7 cm. x 5 mm x 3 mm over the left parietal region of the scalp. Even the doctor P.W.10 initially recorded her opinion that such an injury is simple in nature. Such sort of an opinion, the doctor P.W.10 was able to have was at the time of the victim- deceased being examined initially, that is to say, at 6.55 p.m. on 210. 1984. Only when the victim- deceased developed fits at a later point of time, that is to say, at 4 a.m. the next morning, she changed her opinion and referred the victim-deceased to the Government Rajaji Hospital, Madurai for further treatment and management. At Government Rajaji Hospital, Madurai, the victim-deceased have been admitted by P.W.11 and he ordered for the x-ray to be taken for giving him the best of treatment. At Government Rajaji Hospital, Madurai, the victim-deceased have been admitted by P.W.11 and he ordered for the x-ray to be taken for giving him the best of treatment. After x-ray was taken, the neurosurgeon, Doctor P.W.12 found it necessary to operate upon him. However, the victim-deceased croaked later in the hospital. .27. No doubt, the doctor P.W.14, who conducted autopsy over the body of the deceased would say that the external injury No. 1 corresponding to the internal injury is sufficient in the ordinary course of nature to cause death. The court below, obviously took into account the opinion of the doctor, as stated above, for coming to the conclusion that the act of the accused could very well fall under clause (3) of Sec.300, punishable under Sec.302, I.P.C. Such a view, as the court below entertained, we rather feel, on the facts and in the circumstances of the case, is erroneous. The court below, ought to have taken into consideration the mens rea on the part of accused 6 in inflicting a single beating by means of an iron rod, M.O.4 on the head of the victim-deceased at or about the relevant time of the occurrence. Pertinent it is to note at this juncture that there was no animosity or embittered relationship or even at least any want of cordial atmosphere between the victim-deceased and accused 6 at any time, prior to the time of occurrence. A mammoth rioting under the leadership of accused 1 took place in the scene village on the fateful day in question. It is also to be noticed that under the leadership of accused 1, hundred persons made a march arming themselves with weapons of offences and ultimately, the prosecution was able to locate the presence and participation of only twenty-six accused persons in the occurrence, as a whole, attributing certain overtacts on those accused. One such overtact attributed to accused 6, in such an occurrence was that he gave a single beating on the head of the victim- deceased by an iron rod, like M.O.4. It is not at all the case of the prosecution that accused 6 made any further attempt to inflict any more beating on the person of the victim- deceased by means of M.O.4 iron rod, which he was stated to be having in his hand then. It is not at all the case of the prosecution that accused 6 made any further attempt to inflict any more beating on the person of the victim- deceased by means of M.O.4 iron rod, which he was stated to be having in his hand then. The overtact of the accused 6 in inflicting the lone and sole beating on the head of the victim- deceased by means of an iron rod, M.O.4 is more or less a hit and run situation from the scene. In such state of affairs, it cannot be stated that there was any sort of a premeditation or design or motive on the part of accused 6 to commit the murder of the deceased. In such circumstances, such a lone and sole overtact of simple hitting by means of an iron rod like M.O.4 on the head of the deceased can, by no stretch of imagination, be stated to have been done with any of the mens rea prescribed under any one of the clauses under Sec.300 punishable under Sec.302, I.P.C. and if at all, such an act on the part of the accused 6 could be stated to one done with the knowledge that it was likely to cause death, but without any intention, to cause death or to cause such bodily injury as is likely to cause death, thereby making his act to squarely fall under Sec.304, Part II, I.P.C. 28. In this view of the matter, the conviction and sentence, as had been imposed upon the third appellant-accused 6 by the court below for an offence under Sec.302, I.P.C. deserve to be set aside and instead he is found guilty under Sec.304, Part II, I.P.C. .29. One more overtact had also been attributed to accused 6, in the sense of himself beating P.W.4 by means of an iron rod, M.O.4 on his left forehead and back of the head. As to this aspect of the matter apart from the evidence of P.W.4, the victim of assault, there is also the consistent testimony of P.Ws.3 and 5 to 7, amply corroborated by the medical testimony of the doctor, P.W.10 and Ex.P-5 wound certificate he issued. The medical testimony would further reveal that the injury so caused is simple in nature and the same could have been caused at the time and in the manner alleged. The medical testimony would further reveal that the injury so caused is simple in nature and the same could have been caused at the time and in the manner alleged. The weapon of offence, being an iron rod, like M.O.4, is a deadly weapon and therefore, his overtact in giving a beating on the person of P.W.4, as stated above, would squarely fall under Sec.324, I.P.C. As such, the conviction, as had been imposed upon him by the court below, for an offence under Sec.324, I.P.C. deserves to be confirmed. Regarding sentence of rigorous imprisonment for one year therefor, it cannot be stated to be either harsh or severe, requiring any interference by way of reduction. As such, the conviction and sentence, as had been imposed upon him by the court below for an offence under Sec.324, I.P.C. deserve to be confirmed. 30. In fine, the conviction and sentence, as had been imposed by the court below, upon accused 1 and 2 for offences under Secs.426 and 323, I.P.C.; accused 6 for an offence under Sec.324, I.P.C. and accused 8 and 18 for an offence under Sec.323, I.P.C. are confirmed. However, the conviction and sentence, as had been imposed upon accused 6 by the court below for an offence under Sec.302, I.P.C. are set aside and he is acquitted thereof; and instead, he is convicted under Sec.304, Part II, I.P.C. and sentenced to rigorous imprisonment for five years. The sentences so imposed upon accused 1, 2 and 6 are ordered to run concurrently. 31. Except to the extent indicated as above, the appeal in other respects, shall stand dismissed.