Judgment :- Rengasamy, J. This referred trial under Sec.366, Crl.P.C, and the appeal are against the verdict of the learned Additional Sessions Judge, Ramasamy Padaiyachi District, at Villupuram, imposing the extreme penalty of death sentence to the appellants 1 and 2, and life imprisonment for the other offences under Secs,302, I.P.C., (two counts) 302 read with Sec. 149, They were also convicted for the offences under Sec.148,449,364,307,307 read with 149,324 and 324 read with 149, I.P.C. for which, the learned Sessions Judge has not imposed any sentence separately, as he has given the death penalty to the appellants 1 and 2 and life imprisonment to the other appellants. 2. The facts of the case can be summarised in the following manner: (i) The appellants, the deceased Pandurangan (D-1) and his father Jayarama Gounder (D-2) are residents of Old Karuvatchi Village, within the police limits of Ananthapuram, which is situate about 10 kms. away from the scene village. The appellants 1 to 4 are brothers and the 5th appellant is closely associate with them. Sometime prior to this occurrence, the 2nd appellant Kathiresan, purchased a land from one Viswanatha Reddiar, and on account of that land, there was dispute between the D-1 Pandurangan and the 2nd appellant. One Ayyakannu also had land disputes with the appellants 1 to 4, and D-1 Pandurangan was supporting the said Ayyakannu. Therefore, there was ill-feeling between the appellants and D-1 Pandurangan. (ii) In the month of March, 1993, the second appellant was attacked by D-1, P.W.3 Saravanan and some others, for which a case was instituted against them in C.C. No.26 of 1994, before the Chief Judicial Magistrate, South Arcot at Cuddalore. On 20.8.1993, at 3.00 p.m., the sister of D-1 by name Lalitha was assaulted by the 2nd appellant, as her cattle has grazed in the garden of the 2nd appellant. By about 5.00 p.m., on that day, when P.W.1 and one Ramasamy, the brother of D-1, were sitting in the tea shop of one Arumugham, they saw D-1 and one Rajendran were coming in a cycle. When they were coming near Perumal temple, appellants 1 and 2 with Koduval in their hands were chasing them and they were followed by the other appellants also with Koduvals in their hands. When they were coming near Perumal temple, appellants 1 and 2 with Koduval in their hands were chasing them and they were followed by the other appellants also with Koduvals in their hands. Rajendran and D-1 Pandurangan abandoning the cycle near the tea shop, ran to their escape, and D-1 who was chased by the appellants 1 and 2 ran into his house and bolted the door from inside. P.W.1 Singaram and Ramasamy were running after them shouting Don’t cut’. All these appellants went to the house of D-1, and finding that his house was bolted, appellants 4 and 5 scaled to the roof of the house and removing a portion of the roof, got into the house. At the same time others standing outside kicked the door, and the door also gave way. The 1st appellant entered into the house, and cut D-1 on his both shoulders. The other four appellants caught hold of his legs and dragged him outside, shouting that as he came in support of Ayyakannu, he should be done away with, and unless he was eliminated they cannot have a peaceful life. So saying, the second appellant cut D-1 on his neck indiscriminately. The 1st appellant cut D-1 on his back. The father of D-1, Jayarama Gounder (D-2) shouting, why his son was cut like that, intervened. The 1st appellant cut him on his head. P.W.1 also intervened at that time, and the 3rd appellant cut him on his right wrist, on the head both on the front side and back side. P.W.2 Unnamalai intervened and she was cut by me 2nd appellant in between her right index finger and thumb. Thereafter, the 2nd appellant cut her on her left shoulder. On Kundamani, the wife of P.W.1, also came there, shouting why they were committing such murders. The 5th appellant kicked her in the sex part, and Rajendran also came there to intervene, but he too was kicked by the 4th appellant. The appellants shouted that if anybody came near them, they would be cut. Thereafter, the appellants took to their heels. (iii) The witnesses found D-1 lying dead, whereas D-2 Jayarama Gounder was lying with bleeding injuries. They tried to get a bullock cart, for taking D-2 to hospital, but none was prepared to give the bullock cart to them. The appellants shouted that if anybody came near them, they would be cut. Thereafter, the appellants took to their heels. (iii) The witnesses found D-1 lying dead, whereas D-2 Jayarama Gounder was lying with bleeding injuries. They tried to get a bullock cart, for taking D-2 to hospital, but none was prepared to give the bullock cart to them. When this occurrence took place, the wife of D-1, Pavanambal, Lalitha, One Ramasamy, the son of D-2, Kundamani, wife of P.W.1, P.Ws.2 and 3 were present. Immediately, a person was sent to Villupuram, to bring a car for transporting the injured persons to the hospital. The car was brought to the village, and P.Ws.1,2 and D-2 Jayarama Gounder were taken in the car and they proceeded to Ananthapuram Police Station, where P.W.1 gave the statement Ex.P-1 to the Sub-Inspector of Police- P.W.9, who registered the same in Cr.No.288 of 1993, under Secs.147, 148,427,452,324,307 and 302, I.P.C. P.W.9, the Sub-Inspector of Police, referred the injured persons to the Government Hospital, at Villupuram. Ex.P-14 is the Express F.I.R., prepared by him, which was forwarded to the Court, and the copies of the same were sent to the Inspector of Police and other police officials. (iv) P.W.11, the Inspector of Police, Ananthapuram, received the message at 9.30 p.m., and he came to the scene of occurrence at 10.45 p.m., In the presence of P.W.5 and another, he prepared a rough sketch Ex.P-18 and an observation mahazar Ex.P-6. In the early hours between 2. 00 a.m. and 4.30 a.m., on 28. 1993, he conducted the inquest on the body of D-1 Pandurangan, in the presence of the Panchayatars, and prepared the inquest report Ex.P-19. He examined P.W.1, P.W.3 and some others at the time of inquest. The body was handed over to the Police Constable for being taken to the Government Hospital, at Villupuram, for post-mortem. At 5.00 a.m., in the presence of P.W.5 and another, P.W.11, the Inspector of Police, seized the bloodstained earth M.O.4, sample earth-M.O.5, tampered roof portion-M.O.6, the sticks of the roof portion-M.O.7, the wooden door bearing No.4/22-M.0.8, Wooden repers M.O.9, padlock M.O.10, blood stained Mud.M.O.l 1, sample earth-M.O.12, M.O.13 to M.O.16 -blood stained vessels, M.0.17-Korai mat and M.O.18 iron lock, under Ex.P-7 Mahazar. In the mean time, P.Ws.1, 2 and D-2 Jayarama Gounder, who reached the Government Hospital, Villupuram, were examined by Doctor, P.W. 10, who found that D-2 Jayarama Gounder was already dead. Ex.P-17 is the Accident Register, informing the death of D-2. (v) The Doctor, P.W.10 examined P.W.2 at 10.45 p.m., and found on her a lacerated wound 6 x 2 x 1 cm. on the web space between the thumb and index finger on the left side extending on to the palm, and a lacerated wound 1 x 1 x 0.5 cm. On her left shoulder. Both injuries bleeding. She was admitted in Accident Emergency ward of the Hospital. Ex.P-15 is the wound certificate issued to her. (vi) P.W.10 Doctor examined P.W.1 at 11.00 p.m., and he found on him (1) an abrasion over the middle of the frontal area 6 x 1 cm. (2) a contusion over right side of the occipital area 3 x 3 cm. (3) a lacerated wound 3 x 2 x 1 cm. Over right fore-arm, and (4) an abrasion over right fore-arm 2 x 1 cm. All injuries were fresh. Ex.P-16 is the wound certificate issued to P.W.1. (vii) The Inspector of Police, after receiving the message Ex.P-17 for the death of D-1 Jayarama Gounder, proceeded to the hospital, and conducted the inquest on the body of D-2, between 8.30 a.m. and 11.00 a.m., on 28. 1993, in the presence of the panchayatars P.W.5 and some others at that time. The body was handed over to the Police Constable Murugesan, for being taken for post-mortem. (viii) P.W.6, the Medical Officer attached to the Government Hospital, at Villupuram, after receiving the requisition from the Inspector of Police commenced the post-mortem on the body of D-1 Pandurangan, at 11.20 a.m., on 28. 1993. He found on the body of D-1, the following injuries: 1. A lacerated injury over the posterior aspect of the scalp opening 19 cm x 13 cm. 2. A lacerated injury 3 cm. above the previous injury 11 cm x 4 cm exposing the brain. 3. A lacerated injury over the left parietal region 13 cm x 5 cm. reddish blood clots are seen. Brain exposed. 4. A lacerated injury below the left ear 5 cm x 3 cm. 5. A lacerated injury along the deltoid groove 11 cm x 3 cm. 6. above the previous injury 11 cm x 4 cm exposing the brain. 3. A lacerated injury over the left parietal region 13 cm x 5 cm. reddish blood clots are seen. Brain exposed. 4. A lacerated injury below the left ear 5 cm x 3 cm. 5. A lacerated injury along the deltoid groove 11 cm x 3 cm. 6. A lacerated injury 6 cm x 2 cm over the lateral aspect of the right upper arm. 7. An incised wound V shaped each limb 10 cm x 3 cm 8. An incised wound over the supra clavicular region tiny. 9. An incised wound over the middle of the right scapular region 5 cm x 2 cm x 1 cm reddish. 10. An incised wound 9 cm x 3 cm below the scapula. The internal organs were normal. He opined that the deceased would have died of shock and hemorrhage. Ex.P-8 is the post-mortem certificate issued by him. .(ix) After the post-mortem, the police constable, in whose custody the dead body of D-1 was handed over, recovered the lungi - M.O.22, Banian - M.0.23, Jatti - M.O.24 from the body of D-1, and handed over them in the police station, which were seized under form No.95 - Ex.C-1. .(x) P.W.7 also was the Medical Officer, attached to Government Hospital, at Villupuram, and he conducted the post-mortem on D-2 Jayarama Gounder at 3.30 p.m., on that day. He found the following external injuries on the body of D-2. .(1) An incised wound 12 cm. length, 2 1/2 cm. in breadth, vertically placed which extends from middle of fore-head to centre of parietal bone, along the depth of the wound he found three broken pieces of skull bone each measuring 1 cm length. .(2) Another linear fracture of skull about 9 cm. in length tranversely placed which extends from 2 cm away from middle of the first wound right side to right temporal region of skull. On opening the skull, he found 150 ml. of blood clot on the right parietal region and the right temporal region of the head extra durally. The dura mater also contained 150 ml. of blood clot on the right parietal region and right temporal region. The other internal organs were normal. On opening the skull, he found 150 ml. of blood clot on the right parietal region and the right temporal region of the head extra durally. The dura mater also contained 150 ml. of blood clot on the right parietal region and right temporal region. The other internal organs were normal. He was of the opinion that the death should have been due to the head injury, 18 to 20 hours prior to the post -mortem examination. Ex.P-9 is the postmortem certificate issued by him. (x) After the post-mortem was over the 8 cubit dothi - M.O.19, full - hand shirt - M.O.20 and a torn piece of saree - M.O.21 were recovered from the dead body of D-2 by the Police Constable, and were handed over in the Police Station, which were seized under Ex.C-2-Form No.95. . .(xi) The Inspector of Police continued the investigation, and searched for the accused. On 28. 1993, he arrested the first appellant in a grove, situated about half a kilometre from the main road, loading to Thiruvannamalai from Nadaanethal. The first appellant, when interrogated in the presence of P. W.4 and another, gave a confession voluntarily, the admissible portion of which is marked as Ex.P-2. He took the police party to Konalur Village, and pointed out the 4th appellant, who was hiding himself under a bridge, near the sign board for the village Konalur. The 4th appellant was interrogated. He also gave a confessional statement voluntarily, the admissible portion of which is marked as Ex.P- 4. The appellants 1 and 4 took the police party and the witnesses to a lilly-pond and by about 4.30 p.m., the first appellant took out M.O.1 Koduval and M.O.2 shirt from a bush nearby and the Inspector of Police seized them in the presence of the witnesses under Ex.P-3 mahazar. The 4th appellant also took out. M.O.3 knife from the same bush and the same also was recovered in the presence of the witnesses under Ex.P-5 mahazar. (xii) Next day, the appellants 1 and 4 were remanded to judicial custody. The other appellants had surrendered before the court. After the seizure of these articles, the Inspector of Police sent Ex.P-10 requisition to the Judicial Magistrate, Villupuram, for causing these articles to be sent for the forensic examination. The Judicial Magistrate, sent them with his covering letter Ex.P-11 to the forensic laboratory. The other appellants had surrendered before the court. After the seizure of these articles, the Inspector of Police sent Ex.P-10 requisition to the Judicial Magistrate, Villupuram, for causing these articles to be sent for the forensic examination. The Judicial Magistrate, sent them with his covering letter Ex.P-11 to the forensic laboratory. Ex.P-12 is the forensic report and Ex.P-13 is the serologist’s report. The Inspector of Police after examining the witnesses and completing the investigation filed the charge sheet against these appellants, for the various offences referred to above. 3. The learned Judicial Magistrate No.2, Villupurarn, committed the case to the Court of Sessions, and the learned Additional Sessions Judge, Villupurarn, took up this case for trial. He framed the charges for the offences which we mentioned in the opening paragraph and when questioned the appellants, they pleaded not guilty and wanted the trial of the case. 4. The learned Additional Sessions Judge, Villupurarn, examined 11 witnesses produced by the prosecution, and after the evidence was over, he questioned the accused/ appellants 1 to 5, under Sec.313, Crl.P.C, with reference to the incriminating circumstances found against them. The appellants denied their complicity in the crime, and stated that the case is foisted against them. They did not examine any witness on their side. 5. The learned Sessions Judge after considering the entire evidence placed before him, has found that the case of the prosecution has been established beyond the shade of doubt, and convicted the appellants 1 and 2 with death penalty, whereas others for the life imprisonment, as mentioned above. In view of the death sentence imposed against the appellants 1 and 2, the matter is referred to this Court, under Sec.366, Crl.P.C, and aggrieved of the conviction the appellants, also have come forward with the appeal. 6. Learned Senior Counsel Mr.Natarajan, appearing for the appellants had argued, that this case has series of infirmities in all aspects, especially the non-examination of the material witnesses, who are said to have been present at the time of occurrence, the discrepancy between the medical evidence and the ocular testimony, the delay in giving the F.I.R., and also the F.I.R. reaching the Court, and according to learned senior counsel, these infirmities have not been properly considered by the learned trial Judge, who had imposed the death penalty on the appellants 1 and 2, and therefore, the conviction is not sustainable in this case. Now, we proceed to consider the alleged infirmities one by one. 7. The first submission made by learned senior counsel is that there was no immediate provocation for the appellants to attack the deceased 1 and 2, and even though it is stated that the family of the appellants 1 to 4 has enmity with one Ayyakannu, who was being supported by D-1 Pandurangan, when the direct enmity is with the said Ayyakannu and there were no other incidents provoking the appellants on the date of the occurrence, there was no possibility for these appellants to attack the deceased. 8. The prosecution case is that on 20.8.1993, at about 5.00 p.m., when the D-1 Pandurangan and Rajendran were coming in a cycle, these appellants chased them, that Rajendran, abandoning the cycle had ran towards the tea shop, while the D-1 Pandurangan ran "into his house, and bolted the door from inside, but these appellants broke open the door, pulled him outside and Slaughtered. It is true that in the complaint Ex.P-1, one incident is referred to at 3.00 p.m., on that day, in which the sister of D-1, by name Lalitha was assaulted by the 2nd appellant, for the reason that her cattle had grazed the cotton crop of the 2nd appellant. Even though we do not have any other evidence to connect that incident with the occurrence, that took place at 5.00 p.m., in which the D-1 Pandurangan and his father the D-2 Jayarama Gounder were attacked, there is abundant, evidence on record, to show that the 2nd appellant was attacked by the D-1 and some others on 3. 1993, for which a case in C.C. No.26 of 1994 was filed before the Chief Judicial Magistrate, Cuddalore. This has been elicited in the cross examination of P.W.1, who admits that there was standing enmity between the D-1 Pandurangan and the 2nd appellant. Even though, P.W.1 would say that the enmity was between the family of the appellants 1 to 4 and the said Ayyakannu, in his cross-examination, he would say that the 2nd appellant became inimical towards the D-1 Pandurangan and some others on account of the 2nd appellant being attacked by D-1 along with others on 3. 1993. Therefore, it cannot be stated that there was no enmity between the deceased and the appellants. 1993. Therefore, it cannot be stated that there was no enmity between the deceased and the appellants. As a matter of fact, the evidence of P.W.1 reveals that after this incident, the rest of the accused in C.C. No.26 of 1994, including P.W.3 were convicted to undergo R.I. for 18 months. Therefore, it is very clear that there was a bitter enmity between the D-1 Pandurangan and the 2nd appellant. No-doubt, soon after the occurrence that took place on 3. 1993, there was no retaliation, till this occurrence on 20.8.1993. But, we cannot study the mind of the culprits, who may have their own schemes and plots, and even a remote behaviour of the deceased which might not have been significant to others, might have caused provocation to the accused party to take vengeance against the D-1 Pandurangan. 9. In S.G. Gundegowda v. State, 1996 Crl.L.J. 852. a Bench of the Karnataka High Court would observe that, "When the case of the prosecution is based on the evidence of eye witnesses, the existence or nonexistence of motive, sufficiency or insufficiency of motive will not play such a major role as in the case which is based on circumstantial evidence. If the prosecution is able to prove its case on motive it will be a corroborative piece at evidence. But even if the prosecution has not been able to prove its case on motive, that will not be a ground to throw over board the prosecution case, because in a case where there are eye witnesses the prosecution case will have to be decided on the basis of the merits of the evidence of such witnesses." 10. In State of Madhya Pradesh v. Mahesh Mohanlal Mali, 1993 Crl.L.J. 2483, a Bench of Madhya Pradesh High Court, also has taken the same view, holding that "absence of motive is also a circumstance for assessing the evidence, but if circumstances prove guilt of the accused, absence of motive does not weaken it and it often happens that only the culprit himself knows what moved him to a certain course of action." Therefore, the witnesses might not have been in an position to study the mind of the accused party, as to why they had chosen that particular day, to attack the D-1, though the 2nd appellant was attacked by the D-1 and others about five months prior to this occurrence. Any how, the fact remains that the appellant’s party had grievance against the D-1 Pandurangan, for the reason that the 2nd appellant was attacked by the D-1 and others. Therefore, it cannot be stated that there was no motive or provocation for the attack by the accused party on the D-1 Pandurangan. 11. The next submission made by learned senior counsel is the non-examination of the material witnesses viz., Rajendran, who accompanied the D-1 Pandurangan, in a cycle, before they were attacked, one Ramasamy, the brother of D-1, as he had witnessed the occurrence of D-1 being chased by the appellants and one Kundamani wife of P.W.1, Kondambal wife of D-1 Pandurangan and Lalitha sister of D-1. Learned senior counsel would argue that the presence of these witnesses has been spoken in the evidence of the witnesses and also mentioned in the complaint Ex.P-1, inspite of that, these witnesses have not been examined by the prosecution. Learned senior counsel further would argue that Lalitha, the sister of the D-1 Pandurangan was said to have been attacked on the day at 3.00 p.m., that had she been examined, she could have thrown some light as to the subsequent event, in which the D-1 was murdered, when especially there is evidence that she was also present at the time of the occurrence, and therefore, the non-examination of these material witnesses leads to enormous doubt in the prosecution case. He also added that Kundamani, wife of P.W.1 was said to have been assaulted in the occurrence, by one of the appellants. In spite of that she also was not examined, and therefore, the non-examination of these persons whose names find a place in the F.I.R., creates considerable doubt, as to the prosecution case, though three witnesses have been examined, stating them to be the eye witnesses. He also would comment, that the name of P.W.3 is not even mentioned in the F.I.R., however, when he has been chosen to be examined as a witness, there is no reason for the prosecution to omit the examination of the other witnesses. 12. Learned Senior Counsel Mr.Natarajan, cited certain decisions in support of his argument that non-examination of the material witnesses by the prosecution would be fatal to the case. In Stephen Seneviratne v. The King, 1939 Bom. 12. Learned Senior Counsel Mr.Natarajan, cited certain decisions in support of his argument that non-examination of the material witnesses by the prosecution would be fatal to the case. In Stephen Seneviratne v. The King, 1939 Bom. L.R.1 at 15, the Privy Council has observed that “witnesses essential to the unfolding of the narrative on which the prosecution is based, must, of course, be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution.” Following this decision, the Supreme Court, also in Narain and others v. State of Punjab, A.I.R. 1959 S.C.484 would observe “whether the witness is so essential or not would depend on whether he could speak to any part of the prosecution case or whether the evidence led disclosed that he was so situated that he would have been able to give evidence of the facts on which the prosecution relied.” In Ishwar Singh v. The State of Uttar Pradesh, A.I.R. 1976 S.C. 2423, the observation of the Supreme Court that “as stated already, the F.I.R. also mentions Jait Singh as an eye-witness. The F.I.R. names 9 persons as witnesses to the occurrence.....There is no explanation why the others were not examined.” 13. In the Privy Council case, there was no eye witness and the whole case depends on the circumstantial evidence. Therefore, the Privy Council felt that the essential witness who unfolds the narrative of the prosecution case is a material witness, whose evidence is very important to the Court. The next case cited above (Narain, In re. A.I.R 1959 S.C. 484), the Supreme Court, after making the observation mentioned above, would observe that “it is not however, that the prosecution is bound to call all witnesses who may have seen the occurrence and so duplicate the evidence.” This expression of the Supreme Court makes it very clear that though an occurrence might have been witnessed by several persons, it is not necessary that everyone of such witness should be called before the court, duplicating the evidence. What all emphasised is that the witness who is unfolding the narrative of which the prosecution is based is the material witness, whose testimony will be more valuable before court. In the third case cited above (Ishwar Singh, In re. What all emphasised is that the witness who is unfolding the narrative of which the prosecution is based is the material witness, whose testimony will be more valuable before court. In the third case cited above (Ishwar Singh, In re. A.I.R. 1976 S.C. 2423), F.I.R. mentioned 9 persons, as eye witnesses, of whom, only 4 were examined as P.Ws.1, 2, 6 and 7. The High Court which heard the appeal doubted the presence of P.W.7 and had excluded his testimony from consideration. The other witnesses were P.Ws.1, 2 and 6. They said that P.W.7 also was present at the time of the occurrence. The Supreme Court felt that when P.W.7 was not present at the time of the occurrence, and his evidence was not trustworthy, the other witnesses viz., P.Ws.1,2 and 6 who would state that P.W.7 also was present is creating a doubt, as to the trustworthiness of the other three witnesses also. So the result was, all the four witnesses were disbelieved, and the evidence of no other eye witnesses was available. So, in that context, the Apex Court, had held that the witnesses essential unfolding the narrative are essential witnesses before the court. Making such observation, the Apex Court also adds that “of course non-examination of some witnesses would not matter if the witnesses examined unfolded the prosecution case fully.” If this observation is understood in the present case before us, the dictums observed above is fully satisfied, because two injured witnesses viz. P.Ws. 1 and 2, and another eye witness have been examined. 14. The learned Public Prosecutor, submitted that in this case, the prosecution has given reasons for the non-examination of the other material witnesses, whose name find a place in the F.I.R., and the reason for the non-examination has been endorsed in the charge sheet itself by the Public Prosecutor, after the conclusion of the trial. On a perusal, we find that the Public Prosecutor would state therein, that as the witnesses were won over by the accused party, the examination of those witnesses was dispensed with. Therefore it cannot be stated that the prosecution has not given any reasons for the non-examination of the other material witnesses. On a perusal, we find that the Public Prosecutor would state therein, that as the witnesses were won over by the accused party, the examination of those witnesses was dispensed with. Therefore it cannot be stated that the prosecution has not given any reasons for the non-examination of the other material witnesses. Even if the reasons given therein are incorrect, if there was apprehension in the mind of the prosecution that these witnesses would not support the prosecution, the prosecution may dispense with those witnesses, and examine, the witnesses of their choice. This aspect has been considered in Bikram Singh and others v. State of U.P., 1994 S.C.C (Crl.) 1411, which has been referred to by the learned trial Judge also. 15. With the risk of repetition, we emphasise that it is not the view of the Apex Court, that all the witnesses who were present are to be examined in every case, though they are material witnesses. On the other hand, if some of the material witnesses have been examined and unfolded the prosecution case fully, there is no necessity for repeating the same evidence, by examining the other witnesses. It is true that the name of P.W.3 does not find a place in the Ex.P-1 complaint, though P.Ws.l and 2 would speak that P.W.3 was also present in the scene of occurrence. Even for the reason that his name is not mentioned in the F.I.R., if we exclude his evidence, it is not as if, there is no evidence before the Court to unfold the prosecution case. P.Ws.l and 2 have the mark of the occurrence, viz., the injuries on them as found by the Doctors. Therefore, when they have fully narrated the occurrence from the time of the beginning, we feel, that the non-examination of the other eye witnesses will not have any impact in the prosecution case, when especially the decisions cited by learned senior counsel themselves would reveal that all the witnesses need not be examined. Therefore, this ground relied upon by the learned senior counsel counts no value. 16. The next ground urged by learned senior counsel is the non-examination of P.W.2, being the eye witness, at the time of inquest by P.W.11. Therefore, this ground relied upon by the learned senior counsel counts no value. 16. The next ground urged by learned senior counsel is the non-examination of P.W.2, being the eye witness, at the time of inquest by P.W.11. Learned senior counsel argued that it is a must to examine the eye witnesses at the time of inquest, but in this case, P.W.2 has been omitted to be examined, as P.W.11, the investigating officer might have been satisfied at that time, that she was not an eye witness to the occurrence, and therefore, the omission of P.W.2 to be examined at the time of inquest is a circumstance to infer that P.W.2 could not have seen the occurrence. But the evidence on the prosecution side shows that this argument of learned senior counsel has no substance. P.W.10. in his wound certificate Ex.P-15, has stated that P.W.2 who had sustained injuries on her shoulder and on the web in between the thumb and index finger was admitted in the Accident Emergency Ward of Government Hospital, Villupuram, at 10.45 p.m., on 20.8.1993. The inquest over the body of D-1 Pandurangan was conducted by P.W.11, in between 2.00 a.m., and 4.30 a.m. on 20.8.1993, and the inquest on the body of D-2 Jayarama Gounder was conducted in between 8.30 a.m., and 11.00 a.m., on the same day. As P.W.2 was admitted in the General Hospital, as in-patient for treatment, there was no possibility of getting this witness in the village for the inquest conducted at 2.00 a.m. though the post-mortem on the body of D-1 Pandurangan was conducted in the Hospital at 8.30 a.m. Any how, when the Doctors had felt that she required proper treatment and admitted her in the Hospital, for the purpose of the inquest, she could not be brought to the place, where the inquest was conducted by P.W.11. Therefore, there is proper reason for non examining P.W.2, at the time of inquest, as she was an inpatient in the Hospital. Hence, this ground raised by learned senior counsel also has no merit and has to be ignored. .17. Therefore, there is proper reason for non examining P.W.2, at the time of inquest, as she was an inpatient in the Hospital. Hence, this ground raised by learned senior counsel also has no merit and has to be ignored. .17. The next ground raised by learned senior counsel is that apart from the absence of the name of P.W.3 in the F.I.R., he is a convict in S.C.No.26 of 1994, on the file of Chief Judicial Magistrates Court, South Arcot District and therefore, his evidence has no value and has to be disbelieved. It is true that he was convicted for attacking the 2nd appellant. For that reason alone, we cannot disbelieve the testimony of a person, when it is found that he was also a witness to the occurrence. His evidence has to be properly assessed, and if it is found trustworthy and believable, certainly that evidence carries weight. In this case, even for the argument sake, as P.W.3 attacked the 2nd appellant, for which he was convicted to undergo R.I. for 18 months, and he being a witness with animosity against 2nd appellant, he cannot be believed, as mentioned above, the other two eye witnesses, P.Ws.1 and 2 have narrated the whole incident from the beginning upto the end. Therefore, even if we reject the testimony of P.W.3, there is sufficient evidence to accept the prosecution version, and therefore, the rejection of the evidence of P.W.3 will not in any way affect the prosecution case. 18. Another argument with regard to the trustworthiness of these witnesses is that all the three eye witnesses, viz., P.W.1 being the co-brother of D-1 Pandurangan, P.W.2, the brother’s wife and P.W.3, the brother’s son of D-1 are closely related to the deceased persons, and therefore, their testimony has to be considered with a pinch of salt. But, in this case, according to learned senior counsel, though there are other material witnesses, the prosecution has chosen to examine these close relations ignoring the other witnesses. But, on a perusal of the evidence, we find that the other witnesses named in the F.I.R., also are close relatives of the deceased persons. Rajendran, is the brother’s son of D-1, Ramasamy is the brother, Lalitha is the sister, Kundaamani is the wife’s sister of D-1 Pandurangan. and Pavanambal is the wife of D-1 himself. But, on a perusal of the evidence, we find that the other witnesses named in the F.I.R., also are close relatives of the deceased persons. Rajendran, is the brother’s son of D-1, Ramasamy is the brother, Lalitha is the sister, Kundaamani is the wife’s sister of D-1 Pandurangan. and Pavanambal is the wife of D-1 himself. Therefore, even if those witnesses were examined, the very same criticism will be raised, contending that the evidence of these close relatives is interested testimony, and therefore, should not be acted upon, when an occurrence, had taken place in a village, where the residents of the locality are related to each other, naturally the persons who had witnessed could be only from such relatives. We must see, whether such relatives could have present at the time of occurrence, and if so whether they are reliable witnesses. For the reason that they are relations of the deceased persons, straight away their testimony cannot be viewed with suspicion. .19. In Prem Chand and another v. State of U.P., A.I.R. 1994 S.C. 1534, the Apex Court has held that the mere fact that one eye-witness was related to deceased is not a ground to discard his evidence, when dying declaration, F.I.R., medical evidence and other circumstantial evidence are supporting his testimony. In this case, the evidence of P.Ws.1 and 2 is supported by so many circumstances, which we are going to refer to, and the medical evidence. The F.I.R. also is in tune with the evidence of these two witnesses. Therefore, the relationship of these witnesses with the deceased persons may not have any bearing to suspect their testimony. Hence, this contention taken by learned senior counsel becomes valueless. .20. Learned senior counsel Mr.Natarajan, contended that the version of the eye witnesses does not tally with the medical evidence, because the Doctor P.W.6 has not found any injury on the neck of D-1 Pandurangan, though all the three eye witnesses would uniformly state that the 2nd appellant had indiscriminately cut the D-1, on his neck and the words used by these three witnesses are identical, indicating that they are tutored witnesses. The post-mortem certificate Ex.P-8 issued by P.W.6, reads that the D-1 had a lacerated injury over the posterior aspect of the scalp, another lacerated injury 3 cm above the injury No.1 , a third lacerated injury over the left parietal region, the fourth lacerted injury below the left ear. According to learned senior counsel, these injuries were attributed to the 2nd appellant, who had cut the D-1 on his neck, but the seats of these injuries are not in the neck, and therefore, the repetition of the witnesses that D-1 was cut in his neck, is nothing but a dubious version, making it clear that they could not have seen the occurrence. The seats of the injuries, for injury Nos.1,2 and 4 found in Ex.P-8 post-mortem certificate, are close to the neck, which are contiguous parts of the neck. The first injury is said to be on the scalp, and the learned senior counsel Mr.Natarajan, conced that the scalp, is the area over the brain, which covers the back side head also. As the neck is almost the part of the nape, the rustic witness may not be able to distinguish between the scalp and the neck, when especially he was not able to see the cut inflicted by the accused persons by standing at some distance, and they would be able to mention the area roughly without any accuracy as to the place of cut. It will not be possible to accurately mention the part on which the weapon fell, though the weapon might have been aimed to a particular part, but landing at a part close to the part aimed. In this case, as mentioned above, the seat of injuries 1 and 2 are the scalp and the 4th injury below the left ear. All these parts are close to the neck, and sometimes, even an educated person may not be in a position to demacratic these parts from the neck. Therefore, when these witnesses would say, that they saw the 2nd appellant cutting the D-1 on his neck, probably the weapon was approaching the area of the neck, though it had landed slightly above the neck. We feel, that this is not at all a discrepancy, when especially the parts mentioned in the postmortem certificate-Ex.P-8 are parts close to the neck. 21. We feel, that this is not at all a discrepancy, when especially the parts mentioned in the postmortem certificate-Ex.P-8 are parts close to the neck. 21. Another contention raised by learned senior counsel is that though a koduval must be having a sharp edge and would cause only incised wound whereas injury Nos.1 to 4 on D-1 are lacerated wounds, a koduval could not have been used by the 2nd appellant, as spoken to by the witnesses and this circumstances also creates doubt as to the prosecution version. Unfortunately, the weapon used by the 2nd appellant had not been seized by the police, and therefore, the prosecution was not able to ascertain from the medical officer, whether that weapon could have caused the injuries found on the D-1 Pandurangan. But it is a common sense that a cutting instrument need not be always with sharp edge. If a cutting instrument was frequently used against hard materials like wood, the sharpness, may not be found, and the weapon will become a blunt edged weapon. Further, the lower part of the weapon close to the handle will not be having sharp edge, and it may be blunt edge because the upper part will be used for cutting purposes. If such a weapon which had lost its sharpness and became blunt was used for inflicting injuries, naturally, we cannot expect the incised wound, but only a lacerated wound. Unless it is made known that the weapon used by the 2nd appellant, had the sharp edge, which would cause only the incised wound, this arguments that koduval cannot cause the lacerated wound cannot be an acceptable argument. .22. Koduval is mainly intended for cutting the timber, and therefore, we will be able to see in village parts to frequently sharpen this instrument by rubbing with the hard stones like granite stones or taking it to the professional sharpener who uses the what stones for sharpning the instrument. As a matter of fact, even the vegetable cutter used in the kitchen also requires periodical sharpening, otherwise, it become useless for cutting the vegetables. When the instrument was used against hard substance like timber, naturally, if it was not sharpened, the weapon may cause sometimes the lacerated wounds. We are able to see from the injuries on P.W.1, that he also sustained only the lacerated wounds. When the instrument was used against hard substance like timber, naturally, if it was not sharpened, the weapon may cause sometimes the lacerated wounds. We are able to see from the injuries on P.W.1, that he also sustained only the lacerated wounds. It is the evidence of P.Ws.1 and 2 that P.W.1 also was attacked by the 2nd appellant, who had the koduval. P.W.1 had told the Doctor-P.W.10, that he was cut by koduval. So, P.W.1 had consistently stated to the Doctor and also before the court, that he was cut only by koduval, though the injuries found on him were lacerations. From these circumstances, we are satisfied that the weapon used by the 2nd appellant, though mentioned to be a koduval, it must have been with blunt edge, as seen from the injuries caused on D-1 and also on P.W.2, and therefore, it cannot be held that a koduval will not cause lacerated injuries. The evidence of the eye witnesses viz., P.Ws. 1 and 2 cannot be brushed aside as to the nature of the weapon used by the 2nd appellant. As the theory suggested by learned senior counsel, that a koduval cannot cause the lacerated injuries is not an acceptable theory, this contention raised by him also falls to the ground. 23. The other area of the attack by learned senior counsel is on the delay in lodging the complaint in the police station and sending the F.I.R. to the court. The occurrence had taken place at 5.00 p.m., on 20.8.1993, whereas P.W.1 had lodged the complaint only at 9.30 p.m., in Ananthapuram police station. Learned senior counsel cited a decision in K. Vadivelu, In re., 7976 L.W. (Crl.) 115, where it is observed that in all cases of murder, culpable homicide, etc. the F.I.R., shall be sent direct to the local Sub Magistrate and other police officials and should be sent in the quickest way possible either by post or hand, and according to learned senior counsel, this direction of the courts, has not been followed in this case, leading to the suspicion as to the participation of these accused persons in the crime alleged. But the evidence discloses that the place of occurrence is 10 kms. But the evidence discloses that the place of occurrence is 10 kms. away from Anathapuram police station, and after the occurrence, though efforts were made by the witnesses to take the D-2 Jayarama Gounder, and the other injured witnesses to the police station, no-one was prepared to give the bullock-cart, and therefore, one was deputed to go to Villupuram, which is about 25 kms. away from the scene village, to fetch a car, for the purpose of transporting these persons. As a matter of fact, it was suggested to P.W.1 that as D-1 was such a cruel man in the village, no-one was prepared to lend their cart for transporting the injured persons. This question has made it clear that there ought to have been a delay in transporting these persons. As a person was deputed from the village to go to Villupuram, naturally he might have caught the bus to reach Villupuram, for which he might have walked some distance from the occurrence village, to the road, through which the buses pass through. Even though, there is no clear evidence, as to the distance between the place of occurrence and the bus route, normally, when the villagers wanted to give treatment to the victim persons, they may not cause unnecessary delay, unless they were forced to face such delay, unless they were forced to face such delay. As P.Ws. 1 and 2 also had cut injuries, and at that time, it was felt that D-2 Jayarama Gounder was alive and needed treatment, we feel, that everyone, associated with the victim party would have been moving quickly to reach Villupuram or other place to get a vehicle for transporting these persons to the Hospital or to the Police Station. Anyhow, it is patent from the evidence of the witnesses that the witnesses took all efforts in the village, to secure a bullock-cart, in which they failed, and thereafter a person was deputed to go to Villupuram for getting a taxi. Then ultimately, the taxi came there from Villupuram, which is about 25 kms., the transport these persons from the occurrence village to Anandapuram Police Station. Therefore, it cannot be said that the delay of 4 1/2 hours is not explained by the prosecution for not lodging the F.I.R. Ex.P-1, in time. 24. Then ultimately, the taxi came there from Villupuram, which is about 25 kms., the transport these persons from the occurrence village to Anandapuram Police Station. Therefore, it cannot be said that the delay of 4 1/2 hours is not explained by the prosecution for not lodging the F.I.R. Ex.P-1, in time. 24. The complaint that was registered at 9.30 p.m., had reached the Judicial Magistrate, Villupuram, only at 5.30 a.m. on 28. 1993. This also was commented by learned senior counsel, as inordinate delay on the part of the prosecution. There is no evidence to accept that there were frequent bus facility Anandapuram police station to the court of Judicial Magistrate, Villupuram. No doubt, P.Ws.1 and 2 were brought in a taxi, and this taxi after Ex.P-1 complaint went to Villupuram for the purpose of treatment of the victim. But, we cannot expect to detain the injured persons after lodging the complaint- Ex.P-1, till P.W.9, the Sub-Inspector of Police made entries in the station diary, and completed the formalities for preparing the F.I.R. That might have taken some time for preparation, and P.W.9 might have felt that he should not further delay the treatment to the victims. It is true that no witness from the police station has been examined, to explain the time at which the F.I.R. was despatched to the court. The complaint was registered at 9.30 p.m., in the police station, but there is no evidence available on record to show that this police station is situated near main road, having frequent bus facility to go to Villupuram, or there was possibility for the F.I.R. being taken in the early hours by catching some from of transport in odd hours of the night. Further, as the F.I.R. had reached in the early morning at 5.30 a.m., we feel, that the delay in this case cannot be viewed seriously, when especially, no cross examination has been done on these aspects to the witnesses, to show that the case was fabricated during this interval viz., between 9.30 p.m., on 20.8.1993 and 5.30 a.m. on 28. 1993. 25. The Courts have held that the mere delay in lodging the complaint or sending the F.I.R. to the court, by itself, will not be ground to disbelieve the prosecution case unless there is a suspicion for the implication of the innocent persons or fabrication of the complaint by confabulation. 1993. 25. The Courts have held that the mere delay in lodging the complaint or sending the F.I.R. to the court, by itself, will not be ground to disbelieve the prosecution case unless there is a suspicion for the implication of the innocent persons or fabrication of the complaint by confabulation. In the case of S.G. Gundegowda, In re. 1996 Crl.L. 852, the view taken by the Kamataka High Court is that “mere delay in receiving of the F.I.R. by the Magistrate cannot be a ground for the court to reject the prosecution case, if the prosecution case is found otherwise acceptable, and safe to be relied upon.” The Apex Court, also in Sanganabasapa Bheemappa Kaligonnavar and others v. State of Karnataka, 1994 M.L.J. (Crl.) 338, has held that “delay, by itself will not be fatal to the prosecution case, and there should be some indications in the F.I.R., that is could have been the result of consultations and that the delay was utilised for the same purpose.” 26. In this case, P.Ws.l and 2, the two injured witnesses have mentioned the doctor P.W.10 the time of occurrence, place of occurrence, though they have not mentioned the names of the assailants. When the delay has been properly explained by the prosecution for lodging the complaint belatedly on account of the reasons which were beyond their control, and the version given in F.I.R. is found to be acceptable. The delay in despatching this F.I.R. to court, as held by the courts in the decisions above, by itself will not be fatal for the prosecution case, to hold that the whole thing given in the F.I.R., is a fabrication. 27. With regard to the inquest also, there is delay of 2 1/2 days, and this has also been criticised by learned senior counsel According to him, though the inquest was conducted on the same night at 2.00 a.m., over the body of D-1 and at 8.30 a.m., over the body of D-2 the inquest reports had reached in court only on 28. 1993, and this delay also has to be seriously considered. In the inquest reports, nothing new is found, except the injuries on the deceased persons and the statements of the witnesses. The contents of the statement of the witnesses are same that what has been stated already in Ex.P-1 complaint. 1993, and this delay also has to be seriously considered. In the inquest reports, nothing new is found, except the injuries on the deceased persons and the statements of the witnesses. The contents of the statement of the witnesses are same that what has been stated already in Ex.P-1 complaint. Therefore, when the F.I.R., itself was lodged already and reached the court on 28. 1993 early morning, the delay in sending these inquest reports, which had reached the court on 28. 1993 also may not have any impact in the prosecution case, though it appears to have been due to the negligence on the part of the investigating officer, who was not prompt in sending them in time. Therefore, this delay also cannot be viewed seriously. 28. We, after complete and careful analysis of the evidence of P.Ws.l and 2, the eye witnesses to the occurrence, who were also injured, find their evidence is acceptable in every aspect of the prosecution case. P.W.2 is living in the same house, in which the deceased were living. Though this house is divided into two parts, and the deceased were residing in one portion of the house, on the northern side, whereas P.W.2 is residing on the southern side, she is a natural witness for the occurrence. As the prosecution case is that the deceased were attacked in their house, P.W.2 must be the witness, who was able to see the occurrence. The appellants have not pointed out any discrepancy in the testimony of P.W.2 or infirmity in her version, though it was argued for the appellants, that P.W.2 had stated to the Doctor, that she was attacked in front of her house, though the occurrence was in front of the house of the deceased, and therefore, her evidence cannot be true. The rough sketch- Ex.P-18 shows, that the bloodstains were found in front of the house, in which the deceased and P.W.2 were living. As mentioned above, when the brothers had divided the house, the frontage was common for both the brothers, and therefore, what was the frontage for the deceased, was the frontage for P.W.2 also. Therefore, she had stated that in front of her house, she was assaulted, when she intervened, while the deceased persons were attacked. Except this aspect, the appellants have not brought out any other circumstances to disbelieve her evidence. 29. Therefore, she had stated that in front of her house, she was assaulted, when she intervened, while the deceased persons were attacked. Except this aspect, the appellants have not brought out any other circumstances to disbelieve her evidence. 29. It was argued by the learned senior counsel that P.W.1 admittedly was a resident about 600 feet away from the scene of occurrence in a different street, and therefore, it would not have been possible for him to be present at the time of occurrence, which had occurred all of a sudden, without any anticipation, and therefore, P.W.1 who is a chance witness cannot be given much weight. It is true that his house is situated about 600 feet away from the scene of occurrence, as spoken to by P.W.11. But, it is not the prosecution case, that he came to the scene of occurrence accidentally. On the other hand, P.W.1 has narrated the events from the beginning onwards, when he was sitting in the tea shop along with Ramasamy, he happened to see these appellants chasing the D-1 and Rajendran, and therefore he had followed them shouting not to cut anyone, as he found these appellants armed with koduvals. It is not as if, P.W. 1 came to the scene of occurrence, when the deceased were cut by the appellants. As he was able to see the D-1 being chased by the appellants, when he was sitting in the tea-shop, naturally he should have ran behind the appellants, only to request them not to harm the deceased persons. Further, his evidence, also discloses that as the D-1 had entered into his house and bolted the door, there should have been some furore, when especially the appellants were shouting at the D-1 Pandurangan, to come out of house. There is also evidence that the 4th appellant and 5th appellant got over the roof for making a hole to get inside the house. Therefore, this incident should have attracted the neighbours and others and there was every possibility for P.W. 1 to be present in the occurrence place, as he also ran towards the house of D-1, when the appellants were shouting at the D-1, asking him to come out of the house. The tea shop in which P.W. 1 and Ramasamy were sitting also is not far away from the house of the deceased. The tea shop in which P.W. 1 and Ramasamy were sitting also is not far away from the house of the deceased. The tea shop is in the same street, in which the house of the deceased is situated, though there is a curve in the southern side of the street. Anyhow, as the evidence discloses that all these appellants ran in a group, chasing the D-1, certainly this should have attracted the attention of those in the street, making them together in front on the house of the deceased, and therefore, there is every possibility for P.W.1 also to go to the house of the deceased, before the deceased were attacked by the appellants. Hence, the possibility for the presence of P.W. 1 in the scene of occurrence is more, in the light of the evidence on record. 30. It was argued for the appellants that P.W.1 also has stated to the Doctor, P.W.10 , that he was attacked at his house at 5.00 p.m., on 20.8.1993 with Aakkaruvai, whereas the place of occurrence is quite different from the place mentioned in Ex.P-16. Accident register, and the weapon Aakkaruvai is also different from Koduval, and therefore, the evidence of P.W.1 is suspicious, when especially, in a case of murder, such suspicions carry more weight, for which, the evidence of P.W. 1 cannot be accepted. 31. It is true that P.W. 1 had told the Doctor-P.W.10, at the time of his treatment, that he was attacked by a known person at his house at 5.00 p.m., on 20.8.1993. This occurrence mentioned in Ex.P.16 had also taken place at 5.00 p.m., on 20.8.1993, in the same village, viz., old karuvatchi. P.W.1 was examined by the Doctor- P.W.10, at 11.00 p.m., on 20.8.1993. But, even at 9.30 p.m., he had lodged Ex.P-1 complaint to P.W.9, mentioning the place of occurrence and the place, where he was attacked and the participants of the occurrence. All details have been already given even by 9.30 p.m., to the police officer, with regard to the occurrence. Therefore, it is doubtful, whether P.W.1 would have mentioned at 11.00 p.m., that he was attacked in a different place, viz., in his house at the very same time. All details have been already given even by 9.30 p.m., to the police officer, with regard to the occurrence. Therefore, it is doubtful, whether P.W.1 would have mentioned at 11.00 p.m., that he was attacked in a different place, viz., in his house at the very same time. As P.W. 1 is the co-brother of the D-1, probably, he might have treated the house of the D-1 as "their house" making him to use the term ‘our house’, wrongly understand by the Doctor - P.W.10, while making the entry in the Accident Register, that it was ‘his house’, leading to this conflict as to the place of occurrence. Had this statement "in my house" was found in the earliest document, certainly, it will carry weight. But, Ex.P-16 Accident Register came into existence two hours after Ex.P-1 complaint. Therefore, what is stated in Ex.P. 16 must be a mistake, at the time of making entry by the Doctor. Excepting this, the appellants are not able to point out, any discrepancy in the evidence of P.W. 1 also. 32. As discussed above, P.W.1 had rushed to the house of the D-1, when D-1 was chased by the appellants. As he being the close relation of the deceased, naturally he had the instinct to protect his father-in-law, the D-2 when he was cut by 1st appellant, and when he intervened he was cut by the 3rd appellant. He sustained the injuries on his head and also on the right wrist as found from Ex.P-16- Accident register, issued by P.W. 10. The Akkaruval mentioned in Ex.P-16 is also a cutting instrument, and the difference is minor, in the bend of the weapon, It is stated that the koduval has the bend in the tip, whereas in the Aakkaruval the curve will be in the middle of the weapon, Sometimes, a weapon might have been made for double purpose of using as Aakkaruval or koduval, or as the weapon was in the hands of assailants, one may mistakenly mention it as Aakkaruvel, instead of koduval. Even though, the evidence of P.W. 1 is that he was cut by koduval, and the F.I.R. also reads that he was cut by koduval, somehow in Ex.P-16 Accident Register, it is mentioned that he was attacked by Aakkaruval. Probably P.W.1 was not able to correctly express the nomenclature of that weapon and had mentioned that it was Aakkaruval. Even though, the evidence of P.W. 1 is that he was cut by koduval, and the F.I.R. also reads that he was cut by koduval, somehow in Ex.P-16 Accident Register, it is mentioned that he was attacked by Aakkaruval. Probably P.W.1 was not able to correctly express the nomenclature of that weapon and had mentioned that it was Aakkaruval. But, except the difference in the bend, both weapons are instruments for cutting, and therefore, much cannot be made for describing the weapon as Aakkaruval to the Doctor P.W.10 P.W.1 has stated that he was running after the appellants, shouting not to cut the D-1 and that the appellants 2 and 2 who kicked the doors were able to displace the door and get inside the house, after which the 1st appellant cut the D-1 on his shoulder, and thereafter he was simply dragged by the appellants 2 to 5, outside the house, and the 2nd appellant had inflicted the fatal injuries on the areas mentioned in Ex.P-8 post-mortem certificate. After the fatal assault on the D-2 Jayarama Gounder, being his father-in-law, P.W.1 had to directly intervene to prevent the further attack on him and only at that time, P.W. 1 also was attacked by the 3rd appellant. P.Ws.1 and 2 have narrated how the 1st appellant attacked the D-1 inside his house on his shoulders, and after he was being dragged out, how the 2nd appellant cut on his neck, followed by another cut by the 1st appellant on his back and when the father of D-1 viz., the D-2 Jayarama Gounder came shouting not to cut his son, he was cut by the 1st appellant, on his head, Absolutely we find no infirmity or circumstances to suspect their testimony in their version. Therefore, the Court below has rightly accepted the testimony of these two witnesses as trustworthy witnesses. 33. Apart from the evidence of P.Ws.1 and 2, as mentioned above, the medical evidence also lends assurance to the prosecution version. The first four injuries on the D-1 were close to the neck, and therefore, the witnesses would say that D-1 was attacked on his neck. The other injuries were found on both the shoulders and also on the back. These injuries on the D-1 corroborate the testimony of P.Ws.1 and 2, even if, we do not believe the evidence of P.W.3. The other injuries were found on both the shoulders and also on the back. These injuries on the D-1 corroborate the testimony of P.Ws.1 and 2, even if, we do not believe the evidence of P.W.3. Another circumstance supporting the prosecution case is that on the D-1, two types of injures were found, one the lacerated wounds and the other on the shoulder and back, the incised wounds, proving that two types of weapons should have been used, probablishing that two persons should have cut the D-1. As discussed above, the weapon used by the 2nd appellant must have been blunt edged, causing the laceration, whereas the koduval used by the 1st appellant was having sharp edge, and therefore, the injuries caused by him on the shoulders are the back were incised injuries. 34. The D-2 Jayarama Gounder was cut by the 1st appellant, according to the ocular witnesses, and the Post-mortem certificate Ex.P-9 shows that he also had an incised injury on the forehead and a fracture on the skull starting from the middle of the above wound, This also shows that the 1st appellant, whose weapon had the sharp edge had caused incised wound on the forehead of D-2, and as the second injury was only a fracture starting from the middle of the first wound, this must have been caused due to the impact in the first wound. Therefore, the medical evidence in this case, fully corroborate the evidence of P.Ws.1 and 2. In addition to these facts, there was also recovery of the weapon M.O.1 and the shirt M.O.2, which had the human bloodstains. .35. P.W.4 has spoken about the confession of the 1st appellant, leading to the recovery of M.O.1. According to P.W.4, the first appellant took the police party to the place near lilly pond and from a bush, he took out M.O.1 koduval and M.0.2 shirt. They were sent for chemical analysis by the forensic laboratory, which has sent Ex.P-30 stating that M.Os.1 and 2 contained the human blood. It is true that the grouping of the blood has not been given. However, the presence of the human blood in M.O.1 koduval is very significant in this case. Sometimes, in the cloth worn by a person there may be human blood, due to so many causes like using nails in the itching areas. It is true that the grouping of the blood has not been given. However, the presence of the human blood in M.O.1 koduval is very significant in this case. Sometimes, in the cloth worn by a person there may be human blood, due to so many causes like using nails in the itching areas. But the presence of the human blood in a cutting instrument, has significance unless it is explained for any other reason. The presence of human blood in M.O.1 koduval certainly corroborates the prosecution case, that this weapon, which was taken out by the 1st appellant was employed in the occurrence, for the attack on the deceased persons. Therefore, there are sufficient materials like the ocular testimony, medical evidence, the recovery of the bloodstained weapon, to fully support the prosecution case, that the occurrence had taken place as mentioned by the prosecution witnesses. 36. No-doubt, the witnesses have spoken about the participation of the appellants 1 to 3 in the attack on the deceased 1 and 2 and P.W. 1 and they have also mentioned about the overt acts against the appellants 4 and 5, who according to them, had claimed over the roof for the purpose of making a hole to get inside the house, when the D-1 had bolted himself inside his house, and thereafter, these two appellants had joined with others while dragging the D-1 outside the house. Except this, there is no evidence for their participation, though P.Ws.1 and 3 would say that the appellants 4 and 5 kicked Rajendran and Kundaamani, wife of P.W.1, who were not examined. When the victims Rajendran and Kundaamani, themselves were not examined as witnesses, to prove the attack on them, the version of other witnesses, for this particular overt act against the appellants 4 and 5, cannot be accepted, and therefore, the lower Court has rightly found that this charge against the appellant 4 and 5, for their alleged attack on the said two persons are not true. It has to be taken now, that there is no evidence for the attack by these two appellants 4 and 5, on any of the person. .37. It has to be taken now, that there is no evidence for the attack by these two appellants 4 and 5, on any of the person. .37. Learned senior counsel Mr.Natarajan, submitted that though there is overt acts against the appellants 4 and 5, that they also ran along with other appellants, chasing the D-1, it cannot be inferred that they had the common object of murdering the D-1, because any person may be chased by holding, a weapon either to threaten him or to hurt him causing grievous or simple injury. But the mere fact that one was chased with weapon by itself will not prove that there was an object to murder the person, and in this case, there is no circumstance to indicate that initially all the appellants had the common object of murdering the deceased, even at the time, when they were chasing the D-1. Learned senior counsel further argues, that cuts were inflicted on the D-1 by the 1st appellant after entering into his house, only on his shoulders, a non-vital parts, that had there been a common object of murdering the D-1, the 1st appellant could have aimed with koduval at the vulnerable part to take his life. But on the other hand, his conduct was only in cutting on the shoulders -the non-vital part, which would lead to the inference that till then, they had no common intention to murder the D-1. All the witnesses viz,, P.Ws.1 to 3 would uniformly state that when the door of the house of D-1 was broken open the 1st appellant entered into the house and cut the D-1 only on his shoulders. As rightly argued by learned senior counsel, had there been a common object to murder the D-1, nothing prevented the 1st appellant to aim his cut at the neck of D-1, or any other vital part, which would have been easy for him to take out his life. On the other hand, after the cut on the shoulders of D-1 he was dragged cut from inside the house and only when he was taken out, the 2nd appellant had aimed his cut at the neck of the D-1. Till then the 1st appellant, who thrust his weapon on the D-1, had chosen only the non-vital parts. On the other hand, after the cut on the shoulders of D-1 he was dragged cut from inside the house and only when he was taken out, the 2nd appellant had aimed his cut at the neck of the D-1. Till then the 1st appellant, who thrust his weapon on the D-1, had chosen only the non-vital parts. Only after the indiscriminate cuts made by the 2nd appellant on the D-1, and while the D-2 Jayarama Gounder, the father of the D-1, intervened, the 1st appellant gave a fatal blow on the D-2. When the 1st appellant was able to cut the D-2 on his head, the same could have been done on the D-1 also. Therefore, from the conduct of the 1st appellant, who had chosen only the non-vital parts initially while attacking the D-1, it is in the realm of doubt as to whether, all the appellants had chased the D-1, with a common object of murdering the D-1. .38. The learned Sessions Judge, also would observe that as all these appellants were chasing the D-1 with dangerous weapons in their hands, there was common object of murdering him. As argued by learned senior counsel, the mere chasing with weapons alone is not sufficient to arrive at a conclusion, that there was a common object for murdering a person, unless the subsequent conduct also confirms that. It appears that the 2nd appellant wanted to quench his thirst of vengeance against the D-1, by thrusting his weapons on the neck. Probably, as the 1st appellant had caused the injuries on the D-1, making him inescapable, the 2nd appellant had thought fit to murder him by inflicting injuries on his neck. Therefore, what we feel is that the intention to murder the D-1 seems to be momentary, after the attack by the 1st appellant, and therefore, this common object of murdering the D-1 must have been developed only when the D-1 was dragged out from his house. The appellants 4 and 5, did not use their weapon against anybody, including the deceased persons. If at all they also had the common object, they could have used the weapon against the two deceased persons or against the other witnesses, who intervened to protect the deceased persons. But there is no evidence for the participation of the appellants 4 and 5, thereafter in the occurrence. 39. If at all they also had the common object, they could have used the weapon against the two deceased persons or against the other witnesses, who intervened to protect the deceased persons. But there is no evidence for the participation of the appellants 4 and 5, thereafter in the occurrence. 39. But the learned Public Prosecutor relying upon the following decisions viz., (1) Muthu Naicker and others v. State of Tamil Nadu, A.I.R. 1978 S.C. 1647: 1978 Crl.L.R. 373 (2) Shamshul Kanwar v. State of U.P..A.I.R. 1995 S.C. 1748: (1995)4 S.C.C. 430 and (3) Lalji and others v. State of U.P, A.I.R. 1989 S. C. 754 would submit that actual participation is not necessary for the common object, and the circumstances show that as the appellants came to the scene of occurrence with lethal weapons, to participate in the attack, they had shared the common object of unlawful assembly. 40. In the first case Muthu Naicker and others v. State of Tamil Nadu, A.I.R. 1978 S.C. 1647: 1978 Crl.L.R. 373, it is observed that ‘if some persons combined to attack a person and if they emerged together one can say that those, who were the members of that assembly shared the common object of the assembly, viz., to assault and even to cause hurt to that person. That at that stage an unlawful assembly was formed is unmistakably established.‘In the second case also Shamshul Kanwar v. State of U.P. A.I.R. 1995S.C. 1748: (1995)4 S.C.C. 430 , the view expressed by the Apex Court is that the participation and attack by every members of the unlawful assembly is not necessary, and the mere presence as member of unlawful assembly is sufficient from the conduct that they had the common object to participate in the attack. In the third case Lalji and others v. State of U.P., A.I.R. 1989S.C. 754, it is observed that ‘the section creates a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. The member of the assembly cannot put forward the defence that he did not with his own hands commit the offence committed in prosecution of the common object of the unlawful assembly. The member of the assembly cannot put forward the defence that he did not with his own hands commit the offence committed in prosecution of the common object of the unlawful assembly. However, all these decisions emphasise that there must be common object for a person in the unlawful assembly to do a particular act for making him vicariously liable to inflict the punishment, for the offence committed by others. Therefore, first of all, the prosecution is bound to establish in this case the common object to commit murder though there is evidence to show that a set of person were moving together with some common object, which need not be to commit murder. 41. In Satyawain and others v. The State of Haryana, 1995 Crl. L.J. 3791 though certain persons who were prosecuted as A-3 and A-4, were also present in the scene of occurrence, as members of the unlawful assembly, as it was found that they did not take part in the attack and no other specific overt act had been attributed against them, they were not found guilty for the offence under Sec.302,IPC. In that ease, five persons were convicted for the offences under Secs.148 and 302 read with 149, I.P.C. There was evidence from the eye witnesses that A-3 and A-4 also be at the deceased with sticks. But the High Court of Punjab and Haryana, found that though there was evidence in general terms indicating that A-3 and A-4 also had taken part in the assault, as there was no specific overt act against them, they could not be convicted for the offence under Sec.302 read with 149, I.P.C. Therefore, the mere presence or the general evidence that they also had taken part in the assault, may not be sufficient to fix the liability under the penal provision, when especially, there was no specific overt act against them. 42. In State of Assam v. Barga Dewani and others, 1971 S.C.C. (Crl.)54 the Supreme Court emphasised that for the common object, the knowledge for the type of offence that was intended to be committed should be established from the conduct of the participants of the occurrence. 42. In State of Assam v. Barga Dewani and others, 1971 S.C.C. (Crl.)54 the Supreme Court emphasised that for the common object, the knowledge for the type of offence that was intended to be committed should be established from the conduct of the participants of the occurrence. In that case also, five accused were convicted for the offence under Sec.302 read with 149, I.P.C, by the trial Court, and in appeal, the High Court upheld the conviction of one person and acquitted the other four, on the ground that there was nothing to show the common object to cause death or to commit murder. The State filed appeal against acquittal, and the Supreme Court observes that of the two parts in Sec. 149, I.P.C., ‘the first part of this section speaks of the commission of an offence in prosecution of the common object of the assembly, whereas the second part takes within its fold knowledge of likelihood of the commission of that offence in prosecution of the common object. The knowledge contemplated by the second part does not mean knowledge of mere possibility of the commission of the offence. The commission of the offence must be reasonably likely. Such knowledge may be collected from the nature of the assembly, its common object, the kind of arms its members bear and their behavior at or before the actual conflict. 43. In Santhosh v. The State of Madhya Pradesh, A.I.R. 1975 S.C. 654 the expression of the Apex Court is as follows: ‘Every offence which may be committed by a member of an unlawful assembly will not be necessarily ascribed to or vicariously fastened upon every other member of that assembly by using Sec. 149. The likelihood of causing of death by the nature of the actions of the members of the assembly must be shown to be within the knowledge of a member who is to be made vicariously liable for a death. Such knowledge may be inferred from the nature of the actions committed by others in an unlawful assembly which the member, held vicariously liable, continues to associate himself with, despite these actions seen by him or known to him’. Such knowledge may be inferred from the nature of the actions committed by others in an unlawful assembly which the member, held vicariously liable, continues to associate himself with, despite these actions seen by him or known to him’. Therefore, from the dictum laid by the Supreme Court, there must be a charge which is framed in such a manner, indicating knowledge or likelihood of the offence of murder and failure to do so did not by itself render the conviction legal, but the prosecution must establish the knowledge of the type of offence, which the unlawful assembly had intended to carry out, and such knowledge must not be from the mere inference or possibility, or in other words, the common object intended must be brought out with an amount of certainty, to rope a person for the constructive criminal liability. 44. This aspect has been more elaborately considered by the Apex Court in a later decision in Musakhan and others v. State of Maharashtra, A.I.R. 1976 S.C. 2566 and in paragraph 5, the Apex Court discusses about the stages in which the object was executed. The Supreme Court would emphasis that a member of the common assembly should be a party to every stage, including the crucial stage, when the offence was committed. The words of the Supreme Court are as follows: "Thus a court is not entitled to presume that any and every person who is proved to have been present near a riotous mob at any time or to have joined or left it at any stage during its activities is in law, guilty of every act committed by it from the beginning to the end, or that each member of such a crowd must from the beginning have anticipated and contemplated the nature of the illegal activities in which the assembly would subsequently indulge. In other words, it must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages, and shared the common object of the assembly at all these stages. Such an evidence is wholly lacking in this case where the evidence merely shows that some of the accused were members of the unlawful assembly at one particular stage, but not at another. Such an evidence is wholly lacking in this case where the evidence merely shows that some of the accused were members of the unlawful assembly at one particular stage, but not at another. In these circumstances, therefore, the accused who were not present or who did not share the common object of the unlawful assembly at other stages cannot be convicted for the activities of the assembly at those stages.‘ In the light of these observations, if we now analyse the evidence of P.Ws.1 and 2, we are able to see that though the appellants 4 and 5 joint with the other appellants, while chasing the D-1, and also participated in the occurrence to some extent, viz., getting into the house of D-1, through the roof and pulling out the D-1 from inside the houses to the outside along with other accused, thereafter they did not do anything, though it is attributed that they were also having weapons in their hands. 45. As argued by learned senior counsel, in the first stage, the D-1 was attacked only in the non-vital parts by the 1st appellant, then only in the second stage, when the D-1 was pulled out from the house, he was attacked on his neck, the vital part with the deliberate intention of taking out his life. No-doubt, appellants 4 and 5 were present there, at that time. For the reason that they came along with the other appellants and entered into the house of D-1, for the purpose of dragging out the D-1 from inside the house, are we presume that they had also the intention of murdering D-1 as there was enmity between the 2nd appellant and the D-1? There could have been the intention to merely hurt the deceased, which intention can be inferred from the attack on the non-vital parts by the 1st appellant and that was the first stage in the occurrence for attack. If really the appellants 4 and 5 had developed the intention of murdering the D-1 as a common object along with the 2nd appellant, who cut the D-1 on his neck, there should have been some overt act on the part of these appellants also, though they came along with the other appellants. If really the appellants 4 and 5 had developed the intention of murdering the D-1 as a common object along with the 2nd appellant, who cut the D-1 on his neck, there should have been some overt act on the part of these appellants also, though they came along with the other appellants. As a matter of fact, the conduct of 3rd appellant is that when P.W. 1 attempted to intervene, he cut him on his head and also in the left wrist. This conduct would show that the 3rd appellant was not able to tolerate P.W.1 interfering with the attack on the deceased persons. Therefore, the 3rd appellant, by his conduct must have the common object of doing away with the deceased. But such is not the conduct on the part of the appellants 4 and 5, who were merely the spectators, after the murderous cut inflicted on D-2 by the 1st appellant. They were also armed with the weapons as mentioned by the witnesses, and if they were also parties to the intention of the 2nd appellant, they would not have been the mere spectators in the scene of occurrence. Therefore, we also feel, that the common object in the beginning could not have been for the murder of the D-1, though all of them came with koduvals in their hands and it is because of the lack of common object to murder the deceased the 1st appellant inflicted the cuts in the non-vital parts. The attack made by the 2nd appellant alone had brought out the intention of causing the death of the D-1, for which action, there was no support from the appellants 4 and 5 from the passive conduct on their part. 46. It is true that for the vicarious liability for the offence committed by a member of the unlawful assembly, there need not be a specific overt act against each individual, but, in this case though appellants 4 and 5 were initially participated in pulling out the D-1 from his house, thereafter remained passive, that too, after the murderous attack made by the 2nd appellant. From this conduct of appellants 4 and 5, we take the view that the appellants 4 and 5 did not share the common object for the murder of the deceased, though there might have been common object for hurting the D.1. 47. From this conduct of appellants 4 and 5, we take the view that the appellants 4 and 5 did not share the common object for the murder of the deceased, though there might have been common object for hurting the D.1. 47. In view of the parameter laid down by the Supreme Court, viz., the specific knowledge for the nature of Offence, which was intended to be committed, we are unable to hold that the appellants 4 and 5 also were party to the common object for the murder of the deceased. When the suspicion has been created from the conduct of the appellants 4 and 5, with reference to the attack made by the 2nd appellant, that benefit has to be given to the appellants 4 and 5. Hence, the appellants 4 and 5 cannot be found guilty under the constructive liability for the offence under Sec.302 read with 149, I.P.C. No-doubt, as mentioned above as they came with weapons along with other appellants, their object to cause injuries on the deceased cannot be denied. As the injuries found on the deceased were grievous, being fatal to the life of the deceased, they can be punished only for the Offence under Sec.326 read with Sec.149, I.P.C., but not under Sec.302 read with 149, I.P.C. To sum up: The prosecution has established that the appellants 1 to 3 had the common object to cause the murder of the deceased 1 and 2, whereas it was able to prove the Offence against the other appellants 4 and 5 only under Sec.326 read with Sec.149, I.P.C. 48. As the first appellant had attacked both the deceased, the Offence under Sec.302, I.P.C., (two counts) is proved, whereas the 2nd appellant, for the death caused by his attack on the D-1, is guilty of the Offence under Sec.302, I.P.C., and for constructive liability for the death of the D-2, he is punishable under Sec.302 read with Sec. 149, I.P.C. The third appellant, as discussed above, had attacked P.W.1, after the attack on the D-2 Jayarama Gounder by the 1st appellant. Therefore, he had shared the common object for the Offence under Sec.302 read with Sec. 149, I.P.C., (two counts), apart from causing the injuries on the vital parts of P.W.1, for which he is liable to be punished under Sec.307. Therefore, he had shared the common object for the Offence under Sec.302 read with Sec. 149, I.P.C., (two counts), apart from causing the injuries on the vital parts of P.W.1, for which he is liable to be punished under Sec.307. I.P.C. The appellants had entered into the house of the D-1, as it appears from the evidence, that initially they had no intention of causing the death of the D-1, they cannot be convicted for the Offence under Sec.449, I.P.C., but only for the Offence under Sec.452, I.P.C., as they had the object of causing hurt to the D-1. As all the appellants possessed the weapons, appellants 1 to 5 are punishable under Sec.148, I.P.C. also. Even though the Court below convicted the appellants under Sec.364, I.P.C, in view of the discussions made above, as there was no intention to murder the D-1, at the time, when they entered into the house of D-1, the Offence would fall only under Sec.367, I.P.C. To Sum up: As the appellants 1 to 5 were parties to the trespass, possessing weapons and also for abduction, all of them are liable to be punished under Secs.148,452 and 367, I.P.C. The appellants 4 and 5 cannot be punished for the Offence under Sec.302 read with Sec. 149, I.P.C. Therefore, they are acquitted of that charge, whereas the 1st appellant is found guilty under Sec.302, I.P.C. (two counts) for having caused the murder of D-1 and D-2, under Sec.307 read with Sec.149, I.P.C, for the attack on P.W.1, and under Sec,324 read with Sec.149, I.P.C, for the attack on the P.W.2. Similarly, the 2nd appellant is also found guilty under Sec.302, I.P.C, for causing the murder of D-1, under Sec.302 read with 149, I.P.C., for the death of D-2, under Sec.307 read with 149, I.P.C., for the attack on P.Ws.1 and 2 respectively. The 3rd appellant is found guilty for the offence under Sec.302 read with Sec.149, I.P.C., (two counts) for the murder of D-1 and D-2, under Sec.307, I.P.C., for having attacked P.W.1 and under Sec.324 read with 149, I.P.C., for the attack on P.W.2. 49. Now coming to the important aspect, viz., the punishment, the lower Court has convicted the appellants 1 and 2 with death penalty, for the reason that the appellants 1 and 2 had attacked the deceased 1 and 2, who were unarmed and caused their death in a brutal manner. 49. Now coming to the important aspect, viz., the punishment, the lower Court has convicted the appellants 1 and 2 with death penalty, for the reason that the appellants 1 and 2 had attacked the deceased 1 and 2, who were unarmed and caused their death in a brutal manner. From the expression of the lower Court, it appears that the learned Sessions Judge was influenced by the two murders. He would observe that this is a ‘rarest of rare’ case, deserving for imposing the death penalty, on the appellants 1 and 2. But the learned Public Prosecutor, would concede that this case would not fall under the category of "rarest of rare" case, in view of the expression made by the Supreme Court, in several decisions. Though the learned Public Prosecutor concedes that this is not a fit case for imposing death penalty, it is proper to refer to some of the decisions of the Apex Court, which has laid down the norms for imposing the death penalty. 50. In Shamshul Kanwar v. State of U.P, A.I.R. 1995 S.C.1748 the Supreme Court has held that number of deaths do not ipso facto make a ground to bring the case under the ‘rarest of rare’ case, when especially, the offence was committed in the provocative gusto and bitter enmity between two factions. Therefore, in this case, for the reason that two persons were murdered, without applying the other para meters, the lower Court was not right in awarding the death penalty on the appellants 1 and 2. 51. In State of Maharashtra v. Manohar Kashinath Ghodake and another, 1982 Crl.L.J. 600 the Apex Court deals with this subject, and has formulated the reasons for imposing the death penalty. 51. In State of Maharashtra v. Manohar Kashinath Ghodake and another, 1982 Crl.L.J. 600 the Apex Court deals with this subject, and has formulated the reasons for imposing the death penalty. In this decision, the Apex Court, has mentioned the cases in which the death penalty to be given and the cases in which the long term imprisonment is suggested for the purpose of reformation of a person convicted for the Offence under Sec.302, I.P.C. In the expression of the Apex Court, the cases of blood-thirsty, irreclaimable, hardened criminals and murder maniacs, deserves to be imposed with death sentence, for the reason that if they are spared from the gallows, it will expose the society to an unknown number of murders of innocent lives, and it is not to be humane but to be callous to allow such criminals to return to the society for they are a certain and a constant menace to the society in general. It is further observed that things are however different with offenders who are a menace to an individual or a family, and not to the society at large. According to the Apex Court, such persons do not live on and for crimes, and their crimes are on account of a temporary possession of them by just for women, wealth or power, or by animalism, vengeance or false notions of valour, and they are not beyond reformation nor are they lost to the society permanently. It further adds that "the heinous-ness of gravity of their Offence may show that they deserve a longer period of suffering, a longer period to meditate and repent, and a more than usual period to recant and reform. The passage of time, the growth in age with consequent physical, mental and moral change, and the reformatory and rehabiltatory methods in the prison whenever adopted, have their own salutary effect on such offenders. If, therefore, in such cases, a sufficiently long period of imprisonment is awarded, it serves a triple purpose. It gives a chance to the offender to reform himself and to return to his family and society as a useful member thereof." 52. Therefore, this view expressed by the Apex Court, would remind use that only the hardened criminals, who are irreclaimable in their activities, and being menace to the society cannot be spared. It gives a chance to the offender to reform himself and to return to his family and society as a useful member thereof." 52. Therefore, this view expressed by the Apex Court, would remind use that only the hardened criminals, who are irreclaimable in their activities, and being menace to the society cannot be spared. The appellants 1 and 2 herein certainly do not fall under these categories, and the occurrence that took place on the ill-fated dated was only on account of the family dispute, lead to this unwanted event. Therefore, it is sufficient to incarcerate the appellants and 2 also, rather than spare them at the gallows. 53. In Shankar alias Gauri Shankar and others v. State of Tamil Nadu, (1994)4 S.C.C. 478 also, the Apex Court has laid down the category of cases, in which alone the extreme penalty of death sentence can be imposed. Therefore, it is sufficient to incarcerate the appellants and 2 also, rather than spare them at the gallows. 53. In Shankar alias Gauri Shankar and others v. State of Tamil Nadu, (1994)4 S.C.C. 478 also, the Apex Court has laid down the category of cases, in which alone the extreme penalty of death sentence can be imposed. The observation is as follows: "A court may, however, in the following cases impose the penalty of death in its discretion; .(a) if the murder has been committed after previous planning and involves extreme brutality; or .(b) if the murder involves exceptional depravity; or .(c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed- .(i) while such member or public servant was on duty; or .(ii) in consequence of anything done or attempt to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or .(d) if the murder is of a person who had acted in the lawful discharge of his duty under Sec.43, Cr.P.C, or who had rendered assistance to a Magistrate or a Police Officer, demanding his aid or requiring his assistance under Secs.37 and 129 of the said Code." But, this is not a case, falling under these categories and as observed in State of Maharashtra v. Manohar Kashinath Ghodake and another, 1982 Crl.L.J. 600, the occurrence was the outcome of the family dispute between two families, and therefore, certainly this is not a case to be named as ‘rarest of rare case’, warranting for the death penalty. The normal punishment of life imprisonment alone can be imposed in this case for the Offence under Sec.302 and Sec.302 read with 149, I.P.C., on the appellants 1 and 2. The normal punishment of life imprisonment alone can be imposed in this case for the Offence under Sec.302 and Sec.302 read with 149, I.P.C., on the appellants 1 and 2. 54.To Sum up: (i) The lower court has rightly found the 1st appellant guilty of the offences under Secs.302, I.P.C. (two counts), 307 read with 149,148 and 324 read with 149, I.P.C., and similarly found the 2nd appellant guilty of the Offences under Secs.302, 302 read with 149, 148 307 read with 149 and 324, I.P.C. (ii) The Court has convicted these appellants 1 and 2 for the Offences under Secs.449 and 364, I.P.C., also, which, we feel, is not correct, in view of the findings given above, and they can be convicted only for the Offences under Secs.452 and 367, I.P.C. (iii) so far as the 3rd appellant is concerned, he has been rightly found guilty for the offences under Secs.148.307,302 read with 149, I.P.C (two counts) and Sec.324 read with 149, I.P.C. For this appellant No.3 also, the charges under Secs.449 and 364 have to be altered for the offences under Secs.452 and 367, I.P.C. (iv) In so far as the appellants 4 and 5 are concerned, we have elaborately discussed, they cannot be convicted for the offence under Sec.302 read with Sec. 149, I.P.C. (on either count). However, in view of their presence and participation to some extent, they are found guilty of the offences under Secs.148,324, read with 149,452, 367 and Sec.326 read with 149, I.P.C. The conviction of the appellants 1 to 5 for the offences under Secs.449 and 364, I.P.C., by the trial Court is set aside. 55. Now coming to the punishment, in view of the discussions above, the 1st appellant is convicted for the Offence under Sec.302, I.P.C. (two counts) and sentenced to life imprisonment for each count, modifying the death sentence. The 2nd appellant also is convicted for the offences under Sec.302,I.P.C, and Sec.302 read with Sec. 149, I.P.C., and sentenced to life imprisonment for each Offence, modifying the death sentence. The Court below has not awarded any separate punishment for the other offences, in view of the fact that they were given the maximum punishment. The conviction and sentence imposed upon the 3rd appellant by the Court below, for the offence under Sec.302 read with 149, I.P.C. (two counts), to undergo life imprisonment for each count are confirmed. The Court below has not awarded any separate punishment for the other offences, in view of the fact that they were given the maximum punishment. The conviction and sentence imposed upon the 3rd appellant by the Court below, for the offence under Sec.302 read with 149, I.P.C. (two counts), to undergo life imprisonment for each count are confirmed. Though, no separate punishments have been given for these appellants 1 to 3, for the other offences, as we have now found that these appellants are guilty of the offences under Secs.452 and 367, I.P.C, we impose the sentence of two years R.I., for each of these offences to each appellant. The conviction and sentence imposed upon the appellants 4 and 5 under Sec.302 read with Sec.149, I.P.C. (two counts) to undergo life imprisonment are sent aside, instead the appellants 4 and 5 are found guilty under Sec.326 read with Sec.149, I.P.C. (two counts). So far as the appellants 4 and 5 are concerned, the Court below has not awarded any separate sentence for the offences under Secs.148 and 324 read with 149, I.P.C. Therefore, we are not imposing any punishment for these offences. However, as they have been now found guilty of the offences under Secs.452,367 and 326 read with 149, I.P.C. (two counts), each of these appellants 4 and 5 have to undergo two years R.I., for each of these offences. The sentences imposed upon all the appellants to run concurrently. 56. Subject to the above modification in the nature of the offences and also the sentences, the appeal otherwise shall stand dismissed. The reference in answered accordingly.