V.S.Sirpurkar, J.: The above two appellants, who were originally accused 1 and 2, have filed this appeal, challenging their conviction by the trial court. Originally there were ten accused, who were tried for the offence of entering into a criminal conspiracy to murder one Velusamy as also one Bomma Naicker, father of Palanichamy(A-9). The accused were also charged for forming an unlawful assembly and committing the murder of Velusamy in pursuance of the common object of the unlawful assembly. The second accused was additionally charged substantively for attempting to cause the murder of one Chinnasamy (P.W.2). Additionally, all the accused were also charged for rioting being armed with dangerous weapons. Barring the two appellants, all the accused have been acquitted of all the other charges. The trial court has not accepted the case of conspiracy, as alleged by the prosecution, and has chosen to convict the first appellant for the offence under Sec.302, I.P.C. simpliciter for having caused the murder of Velusamy and sentenced him to suffer life imprisonment. The second appellant has been convinced for the offence under Sec.307, I.P.C. for having attempted to cause the murder of Chinnasamy (P.W.2) and sentenced him to suffer rigorous imprisonment for seven years. 2. The prosecution story is as under: Anandaraj (A-1) and the deceased Velusamy were neighbours. While Velusamy’s house was on the northern side, the house of Anandaraj on the southern side. For reaching the house of Velusamy, one had necessarily to go through the house of Anandaraj and this was resented by Anandaraj. The prosecution contended that about one year prior to the incident, the nephew of Velusamy had died and when the dead body was tried to be taken through the house of Anandaraj, that was objected to. There were complaints given and it was only after police intervention that the body was allowed to be taken. It is an admitted position that there is a civil dispute pending between these two persons on account of the disputed pathway and, therefore, the village has been divided into two factions. One supporting the deceased Velusamy and the other, the first accused Anandaraj. The prosecution alleged that, on 28.7.1987, there was a clash between the two groups, for which reports were given by both parties to the Vellianai Police Station, in whose jurisdiction comes the village Chinnamanaickenpatti, where the parties lived. One supporting the deceased Velusamy and the other, the first accused Anandaraj. The prosecution alleged that, on 28.7.1987, there was a clash between the two groups, for which reports were given by both parties to the Vellianai Police Station, in whose jurisdiction comes the village Chinnamanaickenpatti, where the parties lived. The prosecution further alleges that, on 30.7.1987, at about 10.00 p.m. Chinnabommanaicker (P.W.1), Chinnaraj (P.W.4), Subbanaicker, Muthusamy and other persons were sitting under a Vathanarayanan tree in the village. While they were so chit-chatting, accused 1 to 8 came there on four bi-cycles and passed them without doing anything. After some time, the accused persons came back at that time, the first accused accosted Velusamy as to why he had filed a case against the accused and tried to assault Velusamy with aruval. At the same time, the second accused accosted Chinnasamy (P.W.2) that he has supporting Velusamy,and therefore, he should not be spared and tried to assault him with aruval. According to prosecution while Velusamy could run away, Chinnasamy (P.W.2) could over the distance of hardly about 10 to 15 feet when he was assaulted by the second accused with aruval. Since he warded off the blow, his hands were cut and the second accused also assaulted on his back and, as a result, Chinnasamy (P.W.2) fell down. Thereafter, all the eight accused gave a hot chase to Velusamy. who was running away and after coming upto a particular distance in the field of Rajunaicker, Velusamy was surrounded by the accused and assaulted, firstly by Anandaraj (A-1), who dealt a blow with aruval on his neck, as a result of which Velusamy fell down and started entreating the accused persons not to assault him. At that time, Krishnan (A-2) also assaulted Velusamy as a result of which his hands were cut. Thereafter, all the other accused persons started assaulting Velusamy as a result of which Velusamy died on the spot. Velusamy received about seventeen injuries. Thereafter, the accused persons took to heels. Chinnasamy (P.W.2), who was lying injured near the Vathanarayanan tree, was then taken to Government Hospital at Karur in an autorickshaw and Chinnabommanaicker (P.W.1) proceeded to the Vellianai police station to lodge a First Information Report. The investigation agency sprang into action and the Investigating Officer (P.W.14) reached the spot of occurrence. The necessary spot observation mahazar, inquest mahazar, etc. were effected. The investigation agency sprang into action and the Investigating Officer (P.W.14) reached the spot of occurrence. The necessary spot observation mahazar, inquest mahazar, etc. were effected. The statements of the witnesses were also recorded, including the statement of Chinnasamy (P.W.2), which was recorded in the hospital. The corpse of Velusamy was sent for post-mortem examination, which was done on the next day by Dr.Shanmuganathan (P.W.3). The accused persons were surrendered later on before the court. Some of the accused persons have discovered the aruvals, including the weapons used in the murderous attack. It also turned out that there was also a conspiracy hatched by the group belonging to Anandaraj (A-1) to eliminate one Bommanaicker, who is none else but the father of Palanichamy (A-9) as the ninth accused resented the way in which his father Bommanaicker had partitioned his property. Bommanaicker was a fortune-teller and he had earlier partitioned his property between his two sons, including Anandaraj (A-1) and had retained some lands for himself, perhaps for his daughter, Kanagammal. The deceased Velusamy was on the side of Bommanaicker as also his daughter Kanagammal and, probably, because of that it was conspired that both Velusamy as well as Bommanaicker should be murdered. At the trial, however, the prosecution restricted itself to the murderous attack on Velusamy alone and the aspect of conspiracy to murder Bommanaicker was not seriously pursued by the prosecution perhaps because Bommanaicker himself, who was said to be the object of the conspirators and examined as P.W.5, turned hostile, The prosecution examined three eye-witnesses, they being Chinnabommanaicker (P.W.1) Chinnasamy (P.W.2) and Chinnaraj (P.W.4). The prosecution also relied on the medical evidence of Dr.Shanmughanathan (P.W.3) as also on the other circumstantial evidence of recovery of aruvals. However, the trial court did not accept the prosecution case of conspiracy regarding the murder of either Velusamy or Bommanaicker and acquitted all the accused of the offence under Sec.120-B, I.P.C. The trial court also held that the prosecution was not able to prove any offence against accused 3 to 10. It was also held that it was the first accused alone, who had caused the murder of Velusamy, while the second accused had attempted to murder Chinnasamy (P.W.2). It was also held that it was the first accused alone, who had caused the murder of Velusamy, while the second accused had attempted to murder Chinnasamy (P.W.2). It accordingly convicted the first accused for the offence under Sec.302, I.P.C. substantively and the second accused for the offence under Sec.307, I.P.C. There being no appeal by the State or revision by anybody against the impugned judgment, we have to consider the correctness of the judgment only in so far as the above mentioned two appellants are concerned. 3. Learned counsel for the appellants firstly criticised the charge and the conviction of the first appellant for substantive offence under Sec.302, I.P.C. He pointed out that the charge as regards the offence under Sec.302, I.P.C. was with the aid of Sec.149, I.P.C. and as such the court could not have convicted Anandaraj (A-1) for the offence under Sec.302, I.P.C, substantively. It is urged by Mr.Sridharan, learned counsel for the appellants that the Apex Court has taken a clear view that such course was impermissible in law. 4. Learned counsel relies on the celebrated judgment, reported in Subran alias Subramanian and others v. State of Kerala, 1993 S.C.C. (Crl.) 583. Learned counsel particularly invited our attention to paragraph 8 of this judgment and pointed out that the Apex Court had found therein that initially six accused persons were chargesheeted for an offence under Sec.302, I.P.C. read with Sec. 149, while one of the accused persons individually had been charged for the substantive offence of murder under Sec.302, I.P.C. 5. Learned counsel then relied on the observations in paragraph 11 to the following effect: "Since, appellant 1 Subran had not been charged for the substantive offence of murder under Sec.302, I.P.C. even the trial court, which tried the six accused persons, was not justified in recording a conviction against him for the substantive offence of murder punishable under Sec.302, I.P.C. after framing a charge against him for the offence under Sec.302, I.P.C. read with Sec. 149 cannot be convicted of the substantive offence under Sec.302, I.P.C. without a specific charge having been framed against him as envisaged by law. Conviction for the substantive offence in such a case is unjustified because an accused might be misled in his defence by the absence of the charge for the substantive offence under Sec.302, I.P.C. Appellant 1, Subran, was never called upon to meet a charge under Sec.302, I.P.C. simpliciter and, therefore, in defending himself, he cannot be said to have been called upon to meet that charge and he could very well have considered it unnecessary to concentrate on that part of the prosecution case during the cross-examination of the prosecution witnesses. Therefore, the conviction of the first appellant for an offence under Sec.302 was not permissible." Relying very heavily on these observations, learned counsel contended that the position was almost similar nay identical in the present case and as such the first accused could not have been convicted for an offence under Sec.302, I.P.C. substantively. It will, therefore, be necessary to see the charge itself. 6. The original charge framed is in Tamil, which is as under: The literal translation of this, as admitted by both the sides, would be some what like this: "On the same day, in the same transaction, in the village of Chinnamanaickenpatti, in the field of Rajunaicker, you accused persons 1 to 8 caused the murder of Velusamy in furtherance of common intention by surrounding him, the first accused cut on the neck with aruval. When Velusamy fell down, while the second accused cut on his right thigh with aruval accused 3 to 8 indiscriminately cut all over his body and caused the death of Velusamy. Thus accused 1 to 8 are guilty of offence under Sec.302, I.P.C. read with Sec. 149." [Italics ours] 7. It must be said, at the outset, that the trial court has been extremely casual, if not negligent, while framing the charge. This was clearly a case where the charge sheet very clearly suggested the formation of an unlawful assembly with the common unlawful object. The trial court did not bother to frame a charge for an offence under Sec.149, I.P.C. independently. This was clearly a case where the charge sheet very clearly suggested the formation of an unlawful assembly with the common unlawful object. The trial court did not bother to frame a charge for an offence under Sec.149, I.P.C. independently. Accordingly to the Public Prosecutor, this was perhaps because there was already a charge of criminal conspiracy under Sec.l20-B, I.P.C. This is also not correct because the incident under the Vathanarayanan tree was and could have been viewed as an independent incident and a separate alternate charge under Sec. 149, I.P.C. itself could have been framed against the accused persons giving them a clear idea of the common unlawful object of murdering Velusamy. Unfortunately, that was not done. Further, though there was a clear material available on record of the individual acts, more particularly against the accused 1 and 2, no formal separate charge substantively for an offence under Sec.302, I.P.C. was framed. The learned trial court also ignored Sec.34, I.P.C. though not completely, as we would hereafter show. Thus, the framing of the charge was a classic example of casualness, carelessness as also negligence on the part of the trial court. Learned counsel very heavily relied upon all these circumstances and claims a verdict of acquittal on this ground for the first accused from the offence under Sec.302, I.P.C. According to him, this was a confusing charge which had resulted in material prejudice. He contended that the defence and more particularly the first accused could have concentrated in his cross-examination against his individual act and could have shown that he had not in fact done anything individually had the charge for the substantive offence under Sec.302, I.P.C. been framed against him. His other contention is that in the absence of the charge with the aid of Sec.34, I.P.C. also, the accused persons, more particularly accused 1 and 2, have been totally misled. 8. We have already expressed ourselves against the manner in which the charge was framed. However a defect in charge is not always fatal to the prosecution. If it is shown that the accused had complete notice of what the prosecution sought to prove against him and if there is no tangible prejudice arising from the defect in the charge, the prosecution could still succeeded. However a defect in charge is not always fatal to the prosecution. If it is shown that the accused had complete notice of what the prosecution sought to prove against him and if there is no tangible prejudice arising from the defect in the charge, the prosecution could still succeeded. It is settled position of law that accused must have a total and complete idea of the allegations of the prosecution which the prosecution seeks to prove against him and that is obtained always by framing the specific charge against him. It is only for that reason that the charge has to provide the necessary particulars not only regarding the place and time of the alleged criminal acts but also the precise allegations. If there material particulars are there in the charge and if the accused is given a specific notice of the allegations which the prosecution seeks to prove against him, then in the absence of any prejudice to the accused, defect in the charge or even the limited absence thereof would be of no consequence. Precisely this is what has happened in the present case. 9. From the charge, the accused had the precise idea of the allegations against them that the first accused had inflicted blow on the neck of Velusamy with aruval and, when Velusamy fell down, the second accused inflicted blows on his right thigh with aruval. Therefore, the accused and more particularly the first accused, have been given a precise idea of the individual act. Not only this, it has also been suggested that the accused had done this in furtherance of the "common intention" (in contradistinction to "common object"). Once, therefore, there is evidence of the prior meeting of mind notice of which charge was given under Sec.120-B, I.P.C. also, and once there was a clear notice of the individual act, the accused could be convicted for the undivided act if that individual act itself is sufficient to convict him for the substantive offence. We shall consider the complicity of the first accused at proper place when we appreciate the evidence of the eye-witnesses, but, for the present, it is sufficient to hold that there has been no prejudice to the first accused and the first accused has been given a total idea regarding his own complicity. 10. The observations in paragraph 11, relied upon by Mr.Sridharan, are being used out of context. 10. The observations in paragraph 11, relied upon by Mr.Sridharan, are being used out of context. Again, since the first accused was given a clear cut idea of his individual act and called upon to meet the same, the observations would not apply in the totality. There is also an observation in the same paragraph to the following effect. "That apart, according to the medical evidence, none of the injuries allegedly caused by this appellant was either individually or taken collectively with the other injuries caused by him, sufficient in the ordinary course of nature to cause death of Suku. Medical evidence is clear on this aspect of the case and it is not possible to say that the injuries inflicted by the first appellant with the chopper were inflicted with the intention to cause death of Suku. The intention to cause the murder of Suku deceased, could not be attributed to him and the medical evidence also shows that the injuries attributed to him were not sufficient in the ordinary course of nature to cause death of the deceased. The conviction of appellant 1 Subran, for the substantive offence under Sec.302, I.P.C. is therefore unwarranted and cannot be sustained." These observations, however, do not all apply to the case of the first accused. On the other hand, as we would show from the medical evidence, there can be a definite finding regarding the first accused alone having caused the neck-injury on the deceased and the neck injury by itself being fatal, the evidence of the Doctor (P.W.3) and more particularly his cross-examination is sufficient in this behalf. Under the circumstances, the reliance by the defence on the aforementioned Supreme Court decision is totally uncalled for. This apart, from the observations in paragraph 13, it will be seen that Subran, accused therein, was convicted for the individual act and ultimately, found guilty for the offence under Sec.304, Part II, I.P.C. The Apex Court had noted that even for those offences subran was not charged substantively. However, considering his individual complicity, the Apex Court has chosen to convict him for the minor offence under Sec.304, Part II. We do not think that any prejudice has been caused to the first accused on account of the defect in charge. The contention raised by the learned counsel in that behalf has to be rejected. 11. The learned counsel then criticised the evidence. We do not think that any prejudice has been caused to the first accused on account of the defect in charge. The contention raised by the learned counsel in that behalf has to be rejected. 11. The learned counsel then criticised the evidence. Particularly the eye-witnesses, and contended that the said evidence were full of intrinsic contradictions and were of extremely suspicious nature. He also pointed out that number of important witnesses, who had been named in F.I.R. as also in the deposition of the eye-witnesses were not bothered to be examined by the prosecution and thereby, the prosecution has suppressed that evidence from the court. We would therefore examine the evidence of the eye-witnesses on whom heavy reliance has been placed by the prosecution and whose evidence is also relied upon by the learned Sessions Judge to convict the accused. 12. Prosecution in all examined three witnesses, who claimed to be the eye-witnesses. They are P.W.1 Chinnabommanaicker, P.W.2 Chinnasamy and P.W.4 Chinnaraj. P.W.1 is the author of the F.I.R., which has been given almost within an hour or two of the gory incident. He states firstly about the dispute between Velusamy and the first accused Anandaraj over the pathway, which was claimed by Velusamy much to the chagrin of the accused. He referred to the clash between the two groups, which took place two days prior to the main incident. He has also referred to the two factions in the village - one supporting Velusamy and the other supporting the first accused. As regards the main incident on 30.7.1987, he suggested that about 10.00 a.m., he, along with Chinnaraj (P.W.4), Subbanaicker, Muthusamy was sitting under a Vathanarayanan tree and chit-chatting. He claims that at that time, Chinnasamy and Velusamy also came and they also sat. Chinnasamy and Velusamy also came and they also sat. Chinnasamy is none other than but P.W.2. He further claimed that accused 1 to 8 came on four bi-cycles and crossed them and turned back. According to him, Anandaraj accosted Velusamy as to why he had filed a case against him and so saying, he tried to inflict an injury on Velusamy with aruval. However, Velusamy ran towards East. Chinnasamy is none other than but P.W.2. He further claimed that accused 1 to 8 came on four bi-cycles and crossed them and turned back. According to him, Anandaraj accosted Velusamy as to why he had filed a case against him and so saying, he tried to inflict an injury on Velusamy with aruval. However, Velusamy ran towards East. At the same time, the second accused also said to P.W.2 Chinnasamy that he was supporting Velusamy and so saying, he inflicted a blow with aruval, which directed towards the neck, but it was warded off by Chinnasamy with his left hand, causing a cut injury on the left hand. It is pointed out that the second accused again inflicted a blow with aruval, which fell on the back of Chinnasamy, on receiving which he fainted and fell down in a with nearby the Vathanarayanan tree. He describes that accused 1 to 8 chased Velusamy, who ran towards East and thereafter towards Sought, but when Velusamy reached upto the field of Rajunaicker, the chasers stopped him in that field and he was surrounded, wherein the first accused inflicted a blow on the neck of Velusamy with aruval. It is due that blow on his neck. Velusamy fell down and beseeched the other accused not to assault and raised his hands. However, the second accused, who had reached there by that time, also dealt aruval blows on his hand and thigh. So also the other six accused started dealing the blows on Velusamy with weapons which they were carrying. He says he himself, Chinnaraj (P.W.4), Muthusamy and Subbanaicker ran behind the accused. The accused then ran away with the weapons. They found that Velusamy had died on the spot, he then proceeded to Vellianai Police Station for giving report. He also spoke about Chinnasamy (P.W.2) being sent to Hospital and further stated that he made a statement before the constable, which was recorded and treated a F.I.R. 13. Thus, the evidence of P.W.1 was heavily criticised by the learned counsel. It is pointed out that in his cross-examination, P.W.1 had specifically admitted that he had not seen whether after inflicting the cut on the neck of Velusamy, the first accused had again cut him. Thus, the evidence of P.W.1 was heavily criticised by the learned counsel. It is pointed out that in his cross-examination, P.W.1 had specifically admitted that he had not seen whether after inflicting the cut on the neck of Velusamy, the first accused had again cut him. The omissions in the cross-examination regarding the complicity of the second accused were also brought on the record in the cross-examination and he was also made to admit that he had not seen as to whether the other accused actually inflicted the cut injuries and on which part of the body they had inflicted those injuries. Learned counsel also criticised the evidence of P.W.1 that this witness was a relative of Velusamy and he is, therefore, likely to be interested against the accused. It is also pointed out that the first and second accused had given evidence against Velusamy in the criminal case where Subbanaicker (P.W.1) and others were arrayed as accused along with Velusamy. 14. There can be no doubt that the village was faction ridden and that the deceased Velusamy and the witnesses like P.W.1 and P.W.2 represented one group while, the accused persons belong to another group. However, that by itself cannot be sufficient to write off the evidence, much less the evidence of the eye-witness like P.W.1, on that sole ground, It is a common experience that in the faction ridden society of the village, witnesses tend to exaggerate and also to involve number of other persons belong to the reveal factions in the cried. However, in so far as the present accused persons are concerned, that criticism will be of no consequence as all the others, whose complicity could not be explained by the said witness, have already been acquitted while, only the present two accused persons are convicted. In spite of the lengthy cross-examination, the defence has not been able to shake the main part of the evidence of this witness that while this witness was sitting and chit-chatting with Velusamy at about 10.00 a.m., the accused persons came there and started the fight. Which ultimately ended in the accused persons giving a hot chase to Velusamy and assaulting him fatally. The witness gets the biggest support from the First Information Report, which was given without any possible loss of time. Which ultimately ended in the accused persons giving a hot chase to Velusamy and assaulting him fatally. The witness gets the biggest support from the First Information Report, which was given without any possible loss of time. In this First Information Report also the role of the first accused has been specifically spoken to that he gave a forcible cut on the backside of the neck of Velusamy. Not only this, but the medical evidence also supports the version of the witness that Velusamy had a fatal injury on his neck. There would be no reason for Chinnabommanaicker (P.W.1) to imagine a story barely within one and a half hours of the incident and, on that basis, falsely implicate the accused persons. The evidence of this witness is natural and sounds credible. The evidence is not at all shaken in so far as it pertains to the commencement of the incident near the Vathanarayanan tree under which the deceased and witnesses were sitting and chit-chatting. The further story that the accused persons gave a hot chase to Velusamy and ultimately surrounded him in the Rajunaicker’s field and assaulted him fatally also has not at all shaken. It was tried to be argued that the prosecution has not chosen to examine Subba Naicker and Muthusamy who, according to this witness, were also present under the Vathanarayanan tree along with Velusamy. However, that non-examination by itself would not efface away the effect of the evidence of this witness as also the other two witnesses, viz., Chinnasamy (P.W.2) and Chinnaraj (P.W.4). It is true that due to the enmity this witness likely to be interested against the accused persons. However, we find that the learned Sessions Judge has exercised the due caution while appreciation the evidence of this witness. We have also exercised the same caution while appreciating his evidence. The non-examination of Subba Naicker and Muthusamy by itself would be of no consequence as the prosecution cannot be asked to unnecessarily repeat the version given by some other witnesses. In this case, all the three witnesses have spoken to about the incident which started under the Vathanarayanan tree and have graphically described the later proceedings. The non-examination of Subba Naicker and Muthusamy by itself would be of no consequence as the prosecution cannot be asked to unnecessarily repeat the version given by some other witnesses. In this case, all the three witnesses have spoken to about the incident which started under the Vathanarayanan tree and have graphically described the later proceedings. If the prosecution unfolds the whole story then it is not necessary that it must examine each and every witness merely because the investigating officer has chosen to record the statement of such witnesses and has chosen further to cite them as witnesses in the charges sheet. We find that the evidence of this witness is rightly believed by the learned Sessions Judge as against the present appellants. We desist from making any comment in respect of the other accused persons and the evidence of this witness against them as we find that, for reasons known to it, the State has not chosen to file an appeal against the acquittal of the other accused persons. 15. P.W.2 Chinnasamy also more or the case repeated the version given by P.W.1. It was tried to be suggested that his evidence would be of no consequence as against the first accused that he had not seen the actual attack, which was made by the first accused on Velusamy. However, he has undoubtedly spoken about the presence of the first accused at the relevant time. He has also spoken about the hot chase having been given by all the eight accused to Velusamy which would also include the first accused. To that limited extent, his evidence corroborates the evidence of P.W.1. This witness had spoken specifically about the second accused having assaulted him and he having suffered injuries due to that attack. There is sufficient evidence, in the shape of medical evidence, to prove those injuries. Again nothing has come out in the cross-examination to doubt this version that he was assaulted by the second accused. He, being an injured witness, would normally have no reason to ignore the real assailant and implicate somebody else falsely. A totally different story was put to him in the cross-examination by which it was tried to be suggested that Velusamy scolded the first accused on account of something which the first accused had uttered regarding Velusamy’s connection with Kannammal. He, being an injured witness, would normally have no reason to ignore the real assailant and implicate somebody else falsely. A totally different story was put to him in the cross-examination by which it was tried to be suggested that Velusamy scolded the first accused on account of something which the first accused had uttered regarding Velusamy’s connection with Kannammal. It is further suggested that at that time Velusamy beat the first accused with chappal and at that time the first accused cut Velusamy with aruval and caused his death. According to the defence, this had happened about one hour prior to the assault on him by the accused persons. It is tried to suggest further that at that time P.W.5 was also present. It is also suggested that he, Subba Naicker and Chinnaraj went near the place of occurrence at 10’O clock in search of the second accused and, at that time, the second accused came there and he was wrongfully restrained and a the time when he was tried to be assaulted, the second accused assaulted the witness. It is not known as to why such a fantastic story has been developed which has the effect of giving the admissions that it was the first accused who had caused the death of Velusamy and it was the second accused who had assaulted P.W.2. Perhaps, the defence tried to raise an almost impossible defence of private defence in case of the second accused and tried to suggest that the first accused was not guilty of an offence under Sec.302, I.P.C., but was merely guilty of the culpable homicide not amounting to murder. Such self-effacing cross-examination, according to us, has not only demolished the effect of the cross-examination of the other two witnesses, but has also lent support to the prosecution theory that the first accused was the sole author of the fatal injury of Velusamy and that the second accused had assaulted and injured Chinnasamy (P.W.2). It was perhaps a miserable attempt to save all the other accused excepting the first and second accused which, very surprisingly, also proved to be successful. Be that as it may, the fact remains that the evidence of this witness has remained unshaken and was, therefore, rightly relied upon by the learned Sessions Judge. 16. It was perhaps a miserable attempt to save all the other accused excepting the first and second accused which, very surprisingly, also proved to be successful. Be that as it may, the fact remains that the evidence of this witness has remained unshaken and was, therefore, rightly relied upon by the learned Sessions Judge. 16. Almost similar is the story of the evidence of Chinnaraj (P.W.4), who has graphically described the first part of the incident regarding the meeting under the Vathanarayanan tree and the assault on Velusamy and P.W.2. He identically stated about the hot chase given by the accused persons to Velusamy and the assault by the first accused with aruval on the backside of the next of Velusamy. Some minor omissions were tried to be taken advantage of by the learned counsel, which do not pertain to the substantial part of the evidence. Unfortunately, even in the cross-examination, the witness was given an opportunity to explain that the accused took out the aruvals from inside their shirts. The omissions regarding the complicity of accused persons 3 to 8 is prominent to the effect that the witness had not stated they were having aruvals and that they were chasing Velusamy. The accused persons 3 to 8 had, therefore been given the benefit. From this, learned counsel argues that his evidence should be totally rejected. We do not think that such an extreme view can be taken in respect of the evidence of this witness merely because he had not stated something about the complicity of accused persons 3 to 8. It cannot, however, be forgotten that the omission is only regarding the hot chase given by accused persons 3 to 8 to Velusamy. His version regarding their presence at the spot has practically remained unchallenged. Strangely enough, he has reiterated in the cross-examination that he had seen the first accused cutting on the backside of the neck of Velusamy and that thereafter he was not able to see as to whether the first accused had dealt another blow. This evidence would lend credence as it would show that the witness is not in the habit of exaggerating his version. This evidence would lend credence as it would show that the witness is not in the habit of exaggerating his version. True it is, that this witness also would be said to be a partisan witness in the sense that he was arrayed as 8th accused in the criminal case where first and second accused were the witnesses, but, even then, it cannot be said that the evidence is tainted or unworthy of credit. Taking the overall view of the evidence of this witnesses it not only appears to be credible by itself. But also supports the evidence of the other two witnesses. 17. If the evidence of these three witnesses is accepted, as has been done by the learned Sessions Judge, then there would be no question of considering any other evidence. These three eye-witnesses by themselves have specifically proved the part played by the first accused and the second accused as against Velusamy and Chinnasamy (P.W.2) respectively. It is amply proved that the deceased Velusamy was given a chase and the first accused dealt a aruval-blow on the back side of his neck, causing his death while, the second accused caused serious cut injuries on P.W.2 with the sharp weapon. 18. Dr.R.Shanmuganathan has been examined by the prosecution, who conducted the post mortem-over the body of Velusamy. He has pointed out that Velusamy had suffered in all seventeen injuries, out of which sixteen were incised wounds. There can be no doubt from these injuries that Velusamy was fatally assaulted by the assailants. The assailants have practically made mincemeat of Velusamy. The Doctor has opined, in the examination-in-chief, that the deceased would appear to have died of shock and haemorrhage due to cut injury of the major vessels and multiple injuries. The learned Additional Public Prosecutor, however, invited out attention to the cross-examination wherein the Doctor had stated that all the artery veins in the neck were cut. Out of seventeen injuries, it can be seen that the only injury on the neck is injury No. 1, which is described as under: “An incised wound of 10 cm x 5 cm x vertebral deep over the nape of the neck.” The Doctor has specifically opined that the death must have been instantaneous after the neck-injury was caused. The Doctor has described the injury No.1 to be necessarily fatal. The Doctor has described the injury No.1 to be necessarily fatal. It was tried to be suggested by the learned counsel that the deceased had died of the multiple injuries and the first accused was not charged with substantive offence under the circumstances. It could not be said that the death was as a result of the first injury alone and, therefore, the first accused could not be booked for an offence under Sec.302, I.P.C. We do not agree. The first injury has been stated to be a fatal injury. If that injury by itself was sufficient and if that injury was inflicted by the first accused, it will have to be held that the first accused intended to cause an injury which was sufficient in the ordinary course of nature to cause death. We have already found that it has been amply proved that it was the first accused alone whom had caused the injury on the backside neck of Velusamy. Under such circumstances, we have no hesitation in holding that the injury fell under “Thirdly” of Sec.300, I.P.C. 19. There can be little doubt that the first accused also intended to inflict the injury on the neck. It is true that a hot chase was given to Velusamy. However, is has amply come in the evidence that when Velusamy was stopped in the field of Rajunaicker, the first accused commenced the attack first aiming the aruval-blow on the backside of the neck of Velusamy. Therefore, all the ingredients for that injury necessary for its fitting in the term “Thirdly” of Sec.300, I.P.C. are present which have been spelt out by the Apex Court in the momentous decision of Virsa Singh v. State of Punjab, A.I.R. 1958 S.C. 465. The first accused being the sole author of that injury and all the subjective and objective aspects regarding that injury having been proved, we are of the firm opinion that the conviction of the first accused for the offence under Sec.302, I.P.C. ordered by the trial court is correct. 20. Same thing can be said regarding the role of the second accused and his assault on P.W.2. There is nothing in the evidence of P.W.2, which could be said to be doubtful. After all, his injured speak for themselves. The injuries have been deposed to by Dr.Shanmuganathan, who examined him on 30.7.1987. 20. Same thing can be said regarding the role of the second accused and his assault on P.W.2. There is nothing in the evidence of P.W.2, which could be said to be doubtful. After all, his injured speak for themselves. The injuries have been deposed to by Dr.Shanmuganathan, who examined him on 30.7.1987. In all four injuries were found on the person of this witness and the first injury is described as a incised would 12 cm x 5 cm x bone deep in the left forearm. The Doctor has found that both the bones were clinically found to be fractured. The two other injuries are he incised wounds on the left scapular region. Both the wounds are 5 cm x 2 cm x bone deep. He also issued a certificate of injury. Which suggested that the first injury had caused fracture. Much was made by the learned defence counsel of the fact that the X-ray reports were not put before the court by the prosecution. It is really surprising that the X-ray reports should not have been put before the court, but that by itself would not be of any help to him as the fracture is clinically established, which is clear from the medical certificate. Be that as it may, the Doctor himself had opined on the basis of X-ray reports, which is clear from his cross-examination and there is nothing to doubt the version of Dr.Shanmuganathan, who is examined as P.W.3. 21. In a decision in Hori Lal v. State of U.P., A.I.R. 1970 S.C. 1969, while considering as what the fracture of bone’ means, the Supreme Court has observed that it is not necessary that the bone should be cut through and through or that the crack must extend from the cutter to the inner surface or that there should be displacement of any fragment of the bone. If there is a break by cutting or splintering of the bone of there is a rupture or fissure in it, it would amount to a fracture within the meaning of Clause 7 of Sec.320. We have no doubt that the fracture in this case is established and, therefore, it is clear that the second accused has had caused grievous wound along with two other incised wounds and multiple abrasions on P.W.2. We have no doubt that the fracture in this case is established and, therefore, it is clear that the second accused has had caused grievous wound along with two other incised wounds and multiple abrasions on P.W.2. Learned counsel, however, pointed out that merely because a grievous wound was caused, it cannot be said that this accused had committed an offence covered under Sec.307, I.P.C. of attempting the murder of P.W.2. He points out that the medical evidence falls short of it and it cannot be forgotten that the second accused stopped after inflicting the four injuries on the witness and did not proceed to inflict an injury which would endanger the life of the injured. Indeed, the Doctor has not opined in his evidence that the injuries caused to the witness could endanger his life. Nor has the Doctor spoken regarding the nature of the injuries or the likelihood of such injuries resulting in death or even endangering the life of the witness. Under such circumstances, the criticism of the learned defence counsel that the offence fall short of one under Sec.307, I.P.C. appears to be well justified. In fact, very little effort seems to be there on the part of the trial court to arrive at a finding that the offence amounted to one under Sec.307, I.P.C. of attempting to commit murder. The finding is abrupt and appears to have been given practically without any discussion on the subject. It was because of that, we were required to go into the details of the nature of the injuries. The offences, at the most, can be covered under Sec.326, I.P.C. of causing a grievous wound with a sharp and deadly weapon like aruval. There can be no doubt that the injures in this case were caused by shaped weapon, there can also be no dispute that one of the injuries was a grievous wound. In that view, we are of the clear opinion that the conviction of the second accused for an offence under Sec.307, I.P.C. cannot be sustained and it has to be modified into the conviction for an offence under Sec.326, I.P.C. as it is amply proved that he was the sole another of the injuries inflicted on the person of P.W.2. 22. 22. As regards the general complicity of the second accused herein, the learned counsel tried to draw some support from the non-identification of the bi-cycles which kept on line there. Our attention was tried to be invited at the evidence of Murugesan (P.W.9), which witness has been examined by the prosecution to suggest that the second accused had hired a bi-cycle and that bicycle has not still been returned to the shop-owner. The learned counsel criticised that the said bi-cycles were not identified by the investigating agency independently. He also criticised that the said bi-cycle was also not got identified by the above mentioned witness. From this the learned defence counsel tries to draw some support that the bi-cycle cannot be involved at all. If the evidence of the eye-witnesses, who were present at the spot, is accepted then, the question of the identification of bi-cycles or whether the second accused had hired a particular bicycle or not would be relegated to the background. We have already indicated that the evidence of the eye-witnesses is credit worthy and acceptable. 23. As regards the appreciation of evidence, the learned counsel relied on a few reported decisions, Learned defence counsel relied on the decision in Shukdev v. State of Punjab, A.I.R. 1992 S.C. 755 to draw support that as given in this case, the deceased was surrounded by the accused persons as such, it was not possible to fix as to which accused had given which blow and caused fatal injuries. The learned counsel wanted to use this case in so far as the first accused is concerned and more particularly to invite a finding that he could not be convicted for an offence under Sec.302, I.P.C. but for the offence under Sec.304, Part II. As already indicated, the essential difference is that in the present situation there is total and complete evidence to suggest that it is first accused alone who had caused the fatal injury on the backside neck of Velusamy. 24. The decisions in Alil Mollah and another v. State of West Bengal, 1996 S.C.C. (Crl.) 1028, Mohd. As already indicated, the essential difference is that in the present situation there is total and complete evidence to suggest that it is first accused alone who had caused the fatal injury on the backside neck of Velusamy. 24. The decisions in Alil Mollah and another v. State of West Bengal, 1996 S.C.C. (Crl.) 1028, Mohd. Iqbal M.Shaikh v. State of Maharashtra, 1998 S.C.C. (Crl.) 1064), Lakshman Prasad v. State of Bihar, 1981 S.C.C. (Crl.) 642 and Jogindhsprasad v. State of M.P., 1981 S.C.C. (Crl.) 160 are the cases of about the principle of appreciation of evidence wherein the Supreme Court has predominantly considered the duty of the court while appreciating the evidence of the solitary witness. The cases are clearly not applicable as it cannot be said that this is a case involving only a single witness. There is not only plurality of witnesses in this case, but it is found that the evidence of the witnesses is acceptable also. 25. The decision in Jamuna Chaudry v. State of Bihar, (1974)3 S.C.C. 774 is also on the question of appreciation of evidence and turns on the facts of that particular case and is, therefore, of no assistance to us. 26. One more decision in Lakhan Mahtor v. State of Bihar, A.I.R. 1966 S.C. 1742 also relied upon in support of the argument that the accused persons could not be convicted for the substantive offence. We have already considered the subsequent decision in Subran’s case, 1993 S.C.C. (Crl.) 583. In that view, this judgment is also of no assistance to us. 27. On the basis of the above discussion, we have come to the conclusion that the trial court has committed no error in convicting the first accused of the offence under Sec.302, I.P.C. and awarding him the sentence of life imprisonment. We confirm that finding and sentence. As regards the second accused, we acquit the him of the offence under Sec.307, I.P.C. and instead convict him for an offence under Sec.326, I.P.C. In that, we set aside the sentence of seven years, rigorous imprisonment of the second accused and modify it by altering the sentence of five years’ rigorous imprisonment for the offence under Sec.326, I.P.C. with these modifications, we dispose of the criminal appeal.