JUDGMENT: The accused were charged under Sec.302 read with Sec.34 and Sec.323, I.P.C. on the allegation that A-1 to A-3 on 14.5.1987 at about 3.30 p.m. with common intention on committing murder of Oorkavalan A-1 stabbed him, A-2 and A-3 attacked him with stick and caused injuries to him. Charges were framed against A-1 under Sec.302, I.P.C. A-2 and A-3 under Sec.302 read with 34, I.P.C. and A-3 under Sec.323, I.P.C. and the accused pleaded not guilty to the charges framed. 2. The case of prosecution on the evidence of P.Ws. is as follows: P.W.1 is the grandson of the deceased Oorkavalan. The accused also belong to the same place. P.W.1 knows the accused. On 14.5.1987 at 3.30 p.m., P.W. 1 was staying in the village in front of Kanthariamman temple. Festival was going on in that temple. P.W.1’s father P.W.2 was running sound service. On 12.5.1987 and 13.5.1987 for two days, the radio set was brought from Tuticorin and it was being played. After settling the accounts regarding the income of the temple, it was decided to play cinema on 14.5.1987 from the balance of the amount. The ratio set brought from Tuticorin was sent back. The Trustee asked P.W.2 to bring the radio set for playing the cinema. P.W.1’s father P.W.2 refused hearing quarrels in the village. The Trustee asked the father of P.W.1 to give the set and he assured that if any problem comes, he would solve it. P. W.9 gave an advance of Rs.10 for the radio set and asked P.W.2 to fix the set. P.W.1’s father asked P.W.1 and one Ravi to fix the set in the temple. Accordingly, they fixed the set in the temple and the music was going on. At that time, A-1 armed with big aruval, M.O.1, A-2 armed with aruval on his hip and A-3 armed with big stick came there and they questioned P.W.1 and Ravi with regard to playing of music and Ravi replied that only at the instance of the trustee, the set was fixed there and if the balance amount was paid, the set will be removed. On that A-3 beat P.W.1 on his shoulder with stick saying that he should obey his words. At that time P.W.1’s grandfather Oorkavalan since deceased was coming there at a distance of 10 feet and asked the accused as to why they are creating problems. On that A-3 beat P.W.1 on his shoulder with stick saying that he should obey his words. At that time P.W.1’s grandfather Oorkavalan since deceased was coming there at a distance of 10 feet and asked the accused as to why they are creating problems. The deceased also told the accused that only at the instance of Dharmakartha, the sound service was fixed and the amount has to be paid to P.W. 1. A-2 snatched his walking stick from the deceased and beat him on his shoulder. P.W.1 grandfather the deceased fell down. Immediately, A-1, who was already having aruval in his hand stabbed the deceased on his stomach stating that The deceased sustained bleeding injury and the intestine came out of the stomach. P.W.1 informed that matter to his father P.W.2 and his junior patenal uncle P.W.4. P.W.1’s aunt P.W.3 and another Mookkaiah P.W.8 pushed the intestine Inside the stomach and tied it with towel. As soon as P.W.1’s father arrived there, A-1 chased P.W.1’s father and stabbed him on his read. P.W.1’s paternal uncle P.W.4 prevented that and A-1 stabbed P.W.1’s paternal uncle on his nose and two teeth fell down. A-2 stabbed P.W.1’s father P.W.2 and ran away from that place. P.W. 1 came near P.W.2 and P.W.4 and they both went to the hospital. P.W.1 then went to the place where his grandfather was lying injured. His grandfather the deceased anted water. P.W.3 gave water. P.W.1’s grandfather was sent to Tuticorin Government Hospital along with P.W.1. Mookaiah, Kandaian and Krishnasamy and treatment was given there. The Head Constable of Tuticorin Police Station, P.W.14 came at 8.00 p.m. to the hospital and recorded the statement of P.W.1’s grandfather Ex.P-1 and P.W.1 attested the same. P.W.14 informed about the occurrence to the Ottapidaram police station through wireless. P.W.18, the Sub Inspector of Police, Ottapidaram received information about this occurrence, registered a case in Crime No.101 of 1987 under Sec.307, I.P.C. and prepared F.I.R. under Ex.P-22. P.W.14 recorded the statement of the injured and P.W.2 and informed it to Ottapidaram police. P.W.18 registered that complaint in Crime No.100 of 1987 under Secs.323 and 324, I.P.C. prepared F.I.R. Ex.P-21 and he sent Exs.P-21 and P-22 to the Judicial Magistrate, Vilathikulam through P.W.11. P.W.14 recorded the statement of the injured and P.W.2 and informed it to Ottapidaram police. P.W.18 registered that complaint in Crime No.100 of 1987 under Secs.323 and 324, I.P.C. prepared F.I.R. Ex.P-21 and he sent Exs.P-21 and P-22 to the Judicial Magistrate, Vilathikulam through P.W.11. P.W.5, the Judicial Magistrate, Tuticorin received the information from the General Hospital, Tuticorin for recording the dying declaration of the injured Oorkavalan and P.W.5 went to the hospital and recorded the dying declaration of Oorkavalan in the presence of Dr.K.S.Ramalingam and obtained his thumb impression and also obtained certificate from the doctor with regard to consciousness of the patient. The patient was conscious throughout the recording of dying declaration Ex.P-3. P.W.18, in the early morning received information about the death of Oorkavalan under Ex.P-13. from P.W.16 the doctor and then, he altered the case to Sec.302, I.P.C., prepared express F.I.R. Ex.P-23 and sent the same to the Magistrate court and the Inspector of Police through P.W.12. P.W.18 was helpful to the Inspector of Police for investigation. Thiru Savarimuthu who first investigated the case died. P.W.18 knows his signature and he was present during his investigation. P.W.18 was present when the Inspector prepared the observation mahazar Ex.P-24 and rough sketch Ex.P-25. P.W.18 was also present when the Inspector of Police held inquest on the dead body of Oorkavalan and prepared inquest report Ex.P-26. That Inspector gave requisition Ex.P-14 to the doctor for conducting post-mortem. P.W.10 produced the dead body to the doctor along with the requisition Ex.P-14 for post-mortem. P.W.17 the doctor conducted the post-mortem on the dead body and found the following injuries: (1) Perforated wound length 12 1/2 cm x 6 cm x stomach transverse colon. A momentum protruding outside seen over the left side abdomen upper and lateral part horizontally. On exploring the injury- the omenthum is injured, the transverse colon is injured incised wound 3 cm x 2 cm x 1 1/2 cm the spleen is injured (through and through in the lower pole of the spleen (3 cm x 2 cm) the left side kidney injured (incised wound 4/2 cm x cm x 12 1/2 cm) power portion. Fith rib (eleventh rib) is fractured. (2) Open cut down mark seen on the right leg over the ankle joint. P.W.17, the doctor has issued post-mortem certificate Ex.P-20. Thereafter, that inspector arrested the accused near the General Hospital, Tuticorin. Fith rib (eleventh rib) is fractured. (2) Open cut down mark seen on the right leg over the ankle joint. P.W.17, the doctor has issued post-mortem certificate Ex.P-20. Thereafter, that inspector arrested the accused near the General Hospital, Tuticorin. The accused had given confession statement before that inspector and as per the admissible portion of that statement Ex.P-27, the accused produced M.O.1 from the debris on the north side of Perumal Temple and that Inspector seized M.O.1 under mahazar Ex.P-26 in the presence of P.W.18. P.W.15 examined A-1 at about 6.30 p.m. on 14.5.1987 and found on him the following injuries: (1) Lacerated injuries of 1-1/2 x 1/4 x 1/4 over right parietal scalp. (2) Lacerated injuries on 3/4 x 1/4 x 1/4 over occipital. (3) Abraison of 1 x 1/2 back of right shoulder. (4) Incised wound of 7 x 4 x 1/2 over right scapular region bleeding. He issued accident register copy Ex.P-8. The complaint given by A.1 was registered in Crime No. 103/87 band F.I.R. Ex.P-29 was referred. P.W.19 examined the witnesses and after completing the investigation laid charge sheet against the accused under Sec.302 read with Sec.34, I.P.C. 3. The trial court found A.1 guilty under Sec.304, Part II, I.P.C. and convicted and sentenced him to undergo R.I., for five years and A-2 and A-3 not guilty and acquitted them. 4. Aggrieved against that conviction and sentence, the first accused has come forward with the present appeal. 5. Point for consideration is whether the conviction and sentence imposed on A-1 the appellant is sustainable. 6. The trial court relied on the evidence of eye witnesses supported by medical evidence and the dying declaration and has found the accused appellant guilty under Sec.304, Part II, I.P.C. The evidence of P.Ws. proves that on the date of occurrence, the trouble arose with regard to fixing of mike set and playing of music. Festival in Kanthariamman temple of that village was going on and two days prior to the date of occurrence i.e., on 12.5.1987 and 13.5.1987, the radio set was brought from Tuticorin and there was playing of songs thorough that set. After settling the accounts, it was decided that from the balance amount, cinema was to be exhibited. Festival in Kanthariamman temple of that village was going on and two days prior to the date of occurrence i.e., on 12.5.1987 and 13.5.1987, the radio set was brought from Tuticorin and there was playing of songs thorough that set. After settling the accounts, it was decided that from the balance amount, cinema was to be exhibited. The Trustee of that temple asked P.W.1’s father to bring his mike set which was previously used for playing songs in that temple, for playing the cinema, P.W.1’s father fearing the trouble, refused to bring the set, the trustee of that temple somehow compromised that matter and asked P.W.1’s father to bring that set and accordingly a sum of Rs.10,000 was paid as advance at the instance of the trustee by P.W.9. Accordingly, P.W.1 and his servant Ravi went to the temple and fixed the mike set and the songs were also being played. At that time, A.1 intervened and asked as to who asked them to play music there and the said Ravi replied that at the instance of Dharmakartha the music were played and if the balance amount was given, they would remove the set. When the quarrel was going on, P.W.1’s grandfather the deceased intervened and when his grandfather fell down, A.1 who was having aruval in his hand, stabbed P.W.1’s grandfather on his left stomach. P.W.1 was the eye-witness for this occurrence. He clearly speaks in his evidence that only A.1 stabbed his grandfather on his stomach and he informed that matter to his father P.W.2 and his junior paternal uncle P.W.4 and the injured was then taken to the Government Hospital, Tuticorin. The police came to the hospital and recorded the statement Ex.P-1 of P.W.1’s grandfather Oorkavalan and P.W.1 attested the same. The occurrence had happened in the day time. P.W.1 had witnessed this occurrence. His evidence clearly proves that only A.1 attacked P.W.1’s grandfather, the deceased and stabbed him on his stomach and caused death to him. P.W.1 informed about the occurrence to P.W.2 and it is seen from the evidence of P.Ws.1 and 2 that there is enmity between the accused and the deceased family. P.W.3, immediately after the occurrence saw the deceased. P.W.3 pushed the intestine of the deceased inside the stomach and tied it with towel. 7. P.W.1 informed about the occurrence to P.W.2 and it is seen from the evidence of P.Ws.1 and 2 that there is enmity between the accused and the deceased family. P.W.3, immediately after the occurrence saw the deceased. P.W.3 pushed the intestine of the deceased inside the stomach and tied it with towel. 7. Counsel for the appellant submitted that the eyewitnesses are interested witnesses and they are related to each other and basing on their evidence, the conviction is not sustainable. 8. P.W.3 has also spoken to the fact that A.1 stabbed the deceased with aruval on his stomach and his intestine had come out. Even though the eye witnesses are related, they were present in the scene or occurrence and they have spoken in their evidence as to what they have witnessed and even though P.Ws.1 to 4 are closely related. Their evidence cannot be brushed aside when they have clearly spoken in their evidence with regard to the occurrence. Another important factor is that the dying declaration of the deceased Oorkavalan is recorded by the Judicial Magistrate P.W.5 under Exs.P-3. P.W.5 received the intimation from the hospital, on 14.5.1987 at about 7.20 p.m. for recording the dying declaration of the deceased and he went to the hospital and after establishing his identity Oorkavalan since deceased, he recorded the statement under Ex.P-3. In the dying declaration it was clearly stated that his brother’s son and his grandson fixed the mike set and the accused objected to that and they quarrelled with P. W. 1 and another and at that time the deceased went to the scene of occurrence and his brothers son had stated that at the request of the villagers, mike set has been fixed and while he was talking with his brother’s son, the appellant/first accused stabbed him on his abandonment with aruval at 3.00or 3.15 p.m. on 14.5.1987 and the occurrence had happened in front of Kanthariamman temple. So, in the dying declaration Ex.P-3, the deceased had clearly stated that only the appellant stabbed him on his stomach. This dying declaration was given by the injured himself on the verge of his death. Much weight is to be attached to the dying declaration of a person immediately after the occurrence. The doctor has also certified with regard to the condition of the patient Oorkavalan. This dying declaration was given by the injured himself on the verge of his death. Much weight is to be attached to the dying declaration of a person immediately after the occurrence. The doctor has also certified with regard to the condition of the patient Oorkavalan. He had stated that the said Oorkavalan was conscious thorough the recording of dying declaration and the dying declaration was taken in his presence. The certificate Ex.P-8 proves that the patient Oorkavalan was conscious while recording the dying declaration. The Magistrate also certified in Ex.P-3 that he recorded the dying declaration of the deceased in the presence of the doctor and it was read over to the injured Oorkavalan and he accepted it as correct and after his acceptance, he affixed his thumb impression in Ex.P-3. In Ex.P-3, the deceased has clearly implicated the appellant. The deceased was conscious at the time of giving his dying declaration. So, much weight has to be attached to Ex.P-3. 9. The evidence of eyewitnesses coupled with the dying declaration amply establishes that only this accused stabbed the deceased on his abdomen and caused death to him. P.W.6 examined the injured since deceased at 6.45 p.m. on 14.5.1987 and found stab injury in the abdomen of the deceased and found that the intestine had come out and he issued the accident register copy Ex.P-8. He has also given opinion that if a person was stabbed with aruval with force, there is the possibility of the intestines being coming out and if immediately treatment was not given, that would be dangerous to the life and after sustainment of such injury, there is the possibility of being alive for 9 hours and there is possibility of causing severe haemorrage. He has also stated that such injury is possible with M.O.1. P.W.17 the doctor who conducted post-mortem had found injury in the abdomen of the deceased and his opinion is that due to shock and hemorrhage due to the injury, death would have been caused. He has issued post mortem certificate Ex.P-20. He has also given opinion that such injury is possible with M.O.1 and there is the possibility of being alive only for 9 to 10 hours after the occurrence. The medical evidence also supports the case of prosecution. He has issued post mortem certificate Ex.P-20. He has also given opinion that such injury is possible with M.O.1 and there is the possibility of being alive only for 9 to 10 hours after the occurrence. The medical evidence also supports the case of prosecution. It proves that the deceased had sustained stab injury in the stomach which was a vital part and death has been caused to the deceased due to that. The evidence of eye witnesses and Ex.P-3 proves that only the accused was responsible for causing such injury and he alone stabbed the deceased on his abdomen with aruval. The sustainment of injury by the deceased due to the act of the accused is so severe as to endanger the life and it caused death of the deceased within a shortwhile. So, there is ample evidence on the side of prosecution to prove the guilty of the accused. 10. Counsel for the appellant submitted that A-1 had sustained injury and it has not been properly explained by the prosecution and the non-explanation of the injury of the accused in this aspect is a material defect on the side of prosecution. P.W.15 had examined A-1 and found on him lacerated injury on his head and shoulder and he issued the accident register copy Ex.P-10 and sent A-1 to Tuticorin General Hospital. He states that all the injuries are simple in nature. Basing on this evidence, the counsel for the appellant submitted that A-1 was also treated by the doctor for his injuries and his complaint was also registered and proper explanation has not been given by the prosecution with regard to the injury sustained by the accused. A.1 also during the course of Sec.313 statement had stated that he was attacked by P.Ws.2, 4 and Krishnasamy and he fell down fainted and he gave complaint to the Ottapidaram Police Station at 3.30 p.m. and his complaint was suppressed. 11. It is seen from the evidence of P.Ws.18 and 19 that the complaint given by A-1 was registered in Crime No.103 of 1987 and F.I.R. Ex.P-29 was referred. It is well-settled that in murder case, when one of the accused is found to have sustained injuries in the course of same occurrence, non-explanation of such injuries by the prosecution is a defect in the prosecution case. 12. The occurrence had happened at 3.30 p.m. on 14.5.1987. It is well-settled that in murder case, when one of the accused is found to have sustained injuries in the course of same occurrence, non-explanation of such injuries by the prosecution is a defect in the prosecution case. 12. The occurrence had happened at 3.30 p.m. on 14.5.1987. In Sec.313 statement, the accused had stated that P.Ws.2, 4 and Krishnasamy attacked him at 2.00 p.m. on 14.5.1987 and he fainted and he gave complaint at 3.30 p.m. So, it is evident from his own statement of A.1 that he fainted at 2.00 p.m. on that day. Even in 313 statement, he has not stated with regard to sustainment of injury in the course of the same occurrence. So, it is clear that A.1 did not sustain injury in the course of the same occurrence. The complaint given by A.1 was referred as action dropped after investigation by the police. P.W.2 in his evidence has stated that when he was attacked by A-1, he snatched the aruval and threw it on A.1 and A.1 sustained injury. P.W.4 has also stated that when A.1 and A-2 attacked him, he threw a wood and because of that the accused sustained injuries. The complaint given by A.1 was referred as action dropped. So, it cannot be stated that there was no proper explanation on the side of prosecution with regard to the injuries sustained by A.1. It is well evident from the evidence that A.1 did not sustain injuries in the course of same occurrence. So, the argument advanced by the counsel for the appellant has got no substance. 13. Even though the eye witnesses are close relatives and no other independent witnesses have been examined, I do not find any reason to discard their evidence. The eyewitnesses have seen the occurrence and they have clearly spoken in their evidence that only this deceased stabbed the deceased on his abdomen and caused death to him. The evidence on the side of prosecution clearly proves the guilt of the accused. The finding arrived at by the trial court that the accused had committed the offence punishable under Sec.304, Part II, I.P.C. does not suffer from any infirmity. It does not warrant any interference by this Court. The awarding of sentence of R.I. for five years is not excessive. 14. In the result, the criminal appeal is dismissed.