JUDGMENT The appellants 1 to 9 along with one Ravi were tried for the offences under Sections 147, 148, 452, 323, 324, 325, 341 and 302, IPC. The trial court acquitted the said Ravi (A-7) and convicted the appellants (A-1 to A-6 and A-8 to A-10) for the offences under Secs. 147, 148, 452, 323, 324, 325 and 304, Part II, IPC on the basis of the different charges framed against them. Aggrieved by that, the appellants have filed this appeal. 2. The short facts leading to the conviction are summarised as follows: "(a) P.Ws. 1 to 9, the deceased Krishnan and the accused persons are the residents of Nellikuppam Town. Some of the accused are residing in the houses situate in Angalamman Koil Street and other accused are residing nearby. P.Ws. 1 to 9 are residing at Kailasanathar Koil Street. P.W. 10 Ranganathan is the Trustee of the Durgai Amman Koil which is situate in Kailasanathar Koil Street. Every year there used to be an Aadi Festival in Durgai Amman temple. The deceased Krishnan was managing the affairs of the temple and helped the Trustee P.W. 10 in collecting the amounts from public for arranging the temple function. (b) Five years back, when the Durgai Amman Aadi Festival was celebrated, the accused persons who belong to Angalamman Koil Street created a scene in the festival by eveteasing the women folk who came there to attend the festival. From then onwards, the organisers of the festival did not use to invite the people from Angalamman Koil Street. Due to this, the residents of Angalamman Koil Street, namely the accused persons and others had grievance against the organisers of the Aadi Festival. (c) On 16-8-1991 at about 8.00 a.m., some of the persons who are the residents of Kailasanathar Koil Street beat the first accused on the reason that earlier A-1 abused their relative. In retaliation to the said incident. A-1 brought A-2 to A-10 who belong to Angalamman Koil Street and nearby area to the house of the deceased Krishnan who was one of the organisers of the Aadi Festival. At that time, the deceased was sitting in the pial of his house. A-1 instigated the other accused who were armed with weapons to take the deceased from the pial and bring him outside. At that time, the deceased was sitting in the pial of his house. A-1 instigated the other accused who were armed with weapons to take the deceased from the pial and bring him outside. Accordingly, A-8 and A-9 along with other accused forcibly lifted the deceased Krishnan and went towards the western side. All the accused followed him. At the end of the street, there is a Saw Mill, which connects the Vanapakkam Street and Kailasanathar Koil Street. There, the deceased Krishnan was dropped in the middle of the road, Then, A-1 and A-2 forcibly kicked the deceased on his chest and scrotum. When the witnesses P.Ws.1 to 7, who all belong to Kailasanathar Koil Street intervened, the accused persons beat them with the sticks and koduval and caused bleeding injuries. When they made a hue and cry, all the accused ran away from the scene. In the meantime, the deceased Krishnan became unconscious. Therefore, Krishnan and other injured were taken to the Government Hospital, Cuddalore. (d) P.W. 11, the Doctor examined the victim Krishnan at about 10.10 a.m. After giving the first aid treatment, he was referred to Pondicherry JIPMER Hospital. Then, he examined P.Ws. 1 to 7 from 10.50 a.m. to 12.30 p.m. and issued would certificates. (e) At about 12.00 noon, P.W. 12 Sub-Inspector of Police received intimation about the admission of the injured persons in the hospital. So, at 12.30 p.m., he went to the hospital and obtained the complaint EX.P-1 from P. W. 1. The case was registered for the offences under Sections 147, 148, 342, 325, 326 and 307, IPC. At about 2.00 p.m., the first accused Mohan appeared in the Police Station and gave a complaint against three persons, who belong to Kailasanathar Koil Street, alleging that he was attacked by them with stones at about 8.00 a.m. on that day. The said case was registered for the offences under Sections 341 and 324, IPC. (f) At about 2.30 p.m., P.W.12 came to the scene and prepared observation mahazar EX.P-13 and Sketch EX.P-14. Then, he removed bloodstained earth and sample earth under mahazar EX.P-15. He examined the injured witnesses. On 17-8-1991 at about 7.00 a.m., he received intimation EX.P-16 that the deceased Krishnan died at Pondicherry JIPMER Hospital. Therefore, he altered the FIR for the offence under Section 302, IPC and sent the Express Report Ex.P-17. Then, he removed bloodstained earth and sample earth under mahazar EX.P-15. He examined the injured witnesses. On 17-8-1991 at about 7.00 a.m., he received intimation EX.P-16 that the deceased Krishnan died at Pondicherry JIPMER Hospital. Therefore, he altered the FIR for the offence under Section 302, IPC and sent the Express Report Ex.P-17. (g) P.W. 13, the Inspector of Police took up further investigation on receipt of the Express Report and went to the Pondicherry JIPMER Hospital and conducted inquest and examined the witnesses. EX.P-20 is the inquest report. (h) P.W. 15, the Doctor at about 12.00 Noon conducted post-mortem and found the following injuries: "Injuries: (ante-mortem) 1. Abrasions are present on the following parts of the body:- (a) Outer part of the right upper arm, 13 cm., below the acronion process. 2 cm. x 1 cm. (b) Extensor aspect of the left forearm, 8 cm. proximal to the wrist joint, 1 cm. x 1 cm. (c) Left scapular region, 3 cm. above the inferior angle of the scapula, 1 cm. x 1 cm. II. Contusions are present on the following parts of the body:- (a) Extensor aspect of the middle of the left forearm, 5 cm. x 5 cm. x 5 cm. x muscle deep. (b) Upper 1/3rd of the outer part of the right upper arm, 8 cm. x 5 cm. x muscle deep. (c) Scrotum, 6 cm. x 3 cm. x skin deep. Internal Examination: Head (Scalp, skull, brain, meninges and blood vessels). The scalp shows contusion on the left and right parietal regions. 10 cm. x 10 cm. There is a fissure fracture in the lateral part of the left parietal bone, 1 cm. behind the coronal suture, running horizontally and medially for a distance of 5 cm. and then joining the coronal suture which is seen separated in its entire length. A thick layer (about 2 cm.) of subdural haematoma is present on all the surfaces of the left cerebral hemisphere. Generalized subarachnoid haemorrhage is present. The left temporal lobe is seen lacerated over an area of 5 cm. x 5 cm." Ex.P-32 is the post-mortem certificate. He opined that the deceased would appear to have died of shock as a result of multiple injuries found on the body. (i) On 18-8-1991, P.W. 13 arrested A-3 Balu and recovered wooden reapers M.O. 5 series. The left temporal lobe is seen lacerated over an area of 5 cm. x 5 cm." Ex.P-32 is the post-mortem certificate. He opined that the deceased would appear to have died of shock as a result of multiple injuries found on the body. (i) On 18-8-1991, P.W. 13 arrested A-3 Balu and recovered wooden reapers M.O. 5 series. Then, on 19-8-1991 A-10 Krishnamurthy was arrested and on his confession, bamboo stick M.O. 2 was recovered. Then, A-9 Sankar was arrested. On 22-8-1999, P.W. 13 arrested A-2 Gaja and recovered Koduval M.O. 1. After finishing the investigation, he filed the charge-sheet on 16-9-1992 for the offences referred to above. (j) After committal, the trial was proceeded with. During the course of trial, the prosecution examined P. W. 1 to P.W. 15, filed Exs.P-1 to P-32 and marked M.O. 1 to M.O. 5. (k) All the accused were questioned under Section 313, Cr.P.C. They replied that a false case was foisted against them and they were innocent. (l) After analysing the evidence on record, the trial court acquitted all the accused in respect of the offences under Sections 302 and 302 read with 149, IPC., but however, convicted the accused for the lesser offence, namely under Section 304, Part II and 304 Part II read with 149 IPC. They were also convicted for the offences under Sections 147, 148, 452, 323, and 325, IPC. The trial court acquitted Ravi (A-7) in respect of the charges framed against him". 3. While assailing the conviction and sentence imposed upon the appellants, the counsel appearing for the appellants would make the following submissions: "The trial court has not considered the evidence in the proper perspective and has not taken into account the various infirmities and vital discrepancies which would affect the credibility of the witnesses. There is a discrepancy between the evidence on record and the complaint Ex.P-1 regarding the scene of occurrence. The prosecution has not explained the shifting of the scene as spoken to by the prosecution. The medical evidence on record is contrary to the evidence ofocu1arwitnesses. Ex. P-2 wound certificate, the earliest document would show that to P.W.11 Doctor, it was stated that 25 known persons attacked the deceased which is quite contrary to the case of prosecution. On the other hand, it is mentioned in the complaint that only 9 persons participated in the occurrence. Ex. P-2 wound certificate, the earliest document would show that to P.W.11 Doctor, it was stated that 25 known persons attacked the deceased which is quite contrary to the case of prosecution. On the other hand, it is mentioned in the complaint that only 9 persons participated in the occurrence. Later, the prosecution projected as if 10 persons participated in the attack. Furthermore, some of the accused persons, admittedly, were not known to the witnesses earlier. In the absence of the identification parade, their evidence implicating those accused cannot be acted upon. P.W. 15 post-mortem Doctor found that there was a fracture on the skull. Though the prosecution witnesses would state that the deceased was kicked, P.W. 15 would state that fracture of the skull cannot be caused due to kick. There is also delay in the registration of the FIR. The wound certificates Exs.P-3 to P-9 which would relate to the injuries found on P.Ws. 1 to 7 would show that the occurrence took place at different place at different time. Therefore, the prosecution has not established its case beyond reasonable doubt". 4. Refuting the above submissions, the learned Government Advocate would point out the various portions of the evidence in order to substantiate the reasonings given by the trial court for imposing conviction in respect of various offences. 5. I have carefully considered those submissions and also gone through the records. 6. On my careful perusal of the deposition of the witnesses and exhibits. I am of the view that the contentions urged by the learned counsel for the appellants do not deserve acceptance. 7. The immediate motive for the occurrence is that at 8.00 a.m. on the date of occurrence. A-1 was beaten by some of the persons who belong to Kailasanathar Koil Street. It is the case of prosecution that A-1 and A-2 are residing near the Angalamman Koil Street and they are the friends of A-3 to A-6, who are the residents of the said street. This fact is proved through Ex.P-12 which is the complaint given by the first accused. 8. In retaliation to the said incident, all the persons gathered and formed themselves into an unlawful assembly with the common object of assaulting the residents of the Kailasanathar Koil street and came to the said street with weapons. On seeing Krishnan, who was sitting on the pial of the house. 8. In retaliation to the said incident, all the persons gathered and formed themselves into an unlawful assembly with the common object of assaulting the residents of the Kailasanathar Koil street and came to the said street with weapons. On seeing Krishnan, who was sitting on the pial of the house. A-1 instigated others to abduct the said Krishnan. Accordingly, he was forcibly taken to a nearby place in front of Venkateswara Saw Mill which is at the end of the Kailasanathar Koil Street and there, A-1 and A-2 kicked the said Krishnan on various parts of the body. Only at that time, P.Ws. 1 to 7, the residents of Kailasanathar Koil Street intervened. They were also attacked. When some more crowd gathered there, all the accused ran away from the scene with the weapons. Immediately, all the injured persons were taken to the Government Hospital at Cuddalore. P.W. 11 gave treatment to them. Since the condition of the injured Krishnan was so serious, he was referred to Pondicherry JIPMER Hospital. In the meantime, P.W. 12 Sub-Inspector of Police on getting information from the hospital, came to the hospital and obtained Ex.P-1, the complaint from P.W. 1. 9. Thus, it is clear that immediately after the occurrence, they were taken to the hospital, where they were admitted and their statements regarding the attack were recorded by the Doctor P.W.11 and on receipt of the information, P. W. 12 came and received the complaint from P.W. 1. In Ex.P-1, the complaint, the details of the earlier misunderstanding between the people of Kailasanathar Koil Street and Angalamman Koil Street and the morning incident took place at 8.00 a.m. in which A-1 was attacked and also about the attack made on the deceased and the witnesses, have been clearly I given. Therefore, the question of delay in the matter of registration of the case would not arise. 10. It is true that in Ex.P-2, the wound certificate with reference to the injured Krishnan, it was mentioned that 25 known persons attacked. Admittedly, this was not stated to the Doctor by any of the eyewitnesses. At that time, the victim Krishnan was unconscious. It is the evidence of P.W. 11 Doctor that the same was told by one Murthy who accompanied the deceased. Admittedly, this was not stated to the Doctor by any of the eyewitnesses. At that time, the victim Krishnan was unconscious. It is the evidence of P.W. 11 Doctor that the same was told by one Murthy who accompanied the deceased. Therefore, the number of persons who attacked the deceased as found in EX.P-2 may not be taken as relevant, since in Ex.P-1, the clear details about the participation of the accused persons have been given by P.W. 1 who is injured witness. 11. On going through the evidence of P.Ws. 1 to 7, it is clear that the witnesses and the accused belong to the same town. It may be true that some of the accused belong to some other street. But, it is seen from the evidence that all the accused belong to one group, who had grievance against the organisers of the temple festival, who did not choose to invite those people for attending the festival. Therefore, the absence of the identification parade would not be a ground to reject the evidence of the eye-witnesses. 12. The evidence of P.Ws. 11 and 16 also would show that the evidence of ocular witnesses has been clearly corroborated. According to P.W. 15, there is a fracture on the ribs. The eye-witnesses would say that the accused 1 and 2 kicked on the chest and other parts of the body. Merely because P.W. 15 would say that the fracture on the skull would not be caused by mere kicking, it cannot be decided that evidence of the eyewitnesses, namely P.Ws. 1 to 7 that the accused 1 and 2 kicked on the chest, as a result of which there is a fracture on the ribs cannot be relied upon. 13. Furthermore, the evidence of P.W. 8 who belongs to some other street also would strengthen the case of the prosecution, which is in consonance with the contents of the complaint given by P.W. 1. 14. In this case, A-1 Mohan, A-8 Tinker Kumar and A-9 Sankar were convicted for the offence under Section 147, IPC, since they did not carry any weapon. 14. In this case, A-1 Mohan, A-8 Tinker Kumar and A-9 Sankar were convicted for the offence under Section 147, IPC, since they did not carry any weapon. The other accused, viz., A-2 Gaja alias Gajendran, A-3 Balu, A-4 Saba alias Sabapathi, A-5 Anbu alias Anbarasan and A-6 Babu, who used weapons, were convicted for the offence under Section 148, IPC All the accused were convicted under Section 452, IPC, since they entered into the house of Krishnan and forcibly took him outside. 15. In the same way, A-1 and A-2 were convicted for the offence under Section 304, Part II, IPC, since they caused injuries on the deceased by kicking which resulted in the death. 16. According to prosecution, A-1 assaulted P.W. 2 and P.W. 4 and thereby he was convicted under Sections 323 and 325, IPC A-2 was convicted for the offence under Section 324, IPC on two counts for having caused injuries on P.W. 4 and P.W. 7. A-3 was convicted for the offence under Section 324, IPC on two counts for having caused injuries on P.W. 2 and P.W. 3. A-4 was convicted for the offence under Section 324, IPC on two counts for having caused injuries on P.W. 3 and P.W. 7. A-5 was convicted for the offence under Section 324 IPC on two counts for having caused injuries on P.W. 1 and P.W. 7. A-6 was convicted for the offence under Section 324 IPC for having caused injuries on P.W. 1. A-8 was convicted for the offence under Section 323 for having caused injury on P.W. 3. A-9 was convicted for the offence under Section 325, IPC for having caused injury on P.W. 3. A-10 Krishnamurthy was convicted for the offence under Section 324, IPC on two counts for having caused injuries on P.W. 5 and P.W. 6 and for the offence under Section 325, IPC for having caused injury on P.W. 4. Since the accused 3 to 6 and 8 to 10 were party to the main offence, they have been convicted for the offence under Section 304, Part II read with 149 IPC. 17. As far as A-1 to A-6 and A-8 and A-9, the evidence of P.Ws. Since the accused 3 to 6 and 8 to 10 were party to the main offence, they have been convicted for the offence under Section 304, Part II read with 149 IPC. 17. As far as A-1 to A-6 and A-8 and A-9, the evidence of P.Ws. 1 to 7 in respect of the overt acts attributed to these accused have been clearly corroborated by the corresponding injuries found on them as per the various wound certificates given by P.W. 11 Doctor. Therefore, the conviction imposed upon them, in my view, is correct. 18. However, with regard to the part played by A-10 Krishnamurthy, there is no sufficient and consistent material. Admittedly, according to EX.P-1 complaint, only 9 persons were involved in the crime. There is no reference about the other known persons, P.W. 1 himself would admit that he did not refer anything about A-10 in his statement under Section 161, Cr.P.C. But, only in his deposition, for the first time, he would refer about A-10. P.Ws. 2 and 3 also in the cross-examination would admit that they did not state anything about A-10. P.W. 4 and P.W. 5 had stated to the police that A-10 Krishnamurthy came late to the scene of occurrence. P.W. 12, the Sub-Inspector of Police would state in the cross-examination that P.W. 4, P.W. 5 and P.W. 6 had stated in their statement under Section 161, Cr.P.C. that A-10 Krishnamurthy joined the other accused only on their way to the scene of occurrence. Though all these witnesses would speak about A-10 Krishnamurthy's attack on P.W. 4 and P.W. 5, they did not state to the police officer P.W. 12 that A-10 was present along with the other accused, while the deceased Krishnan was abducted. It is also noticed, as indicated above, A-10's name does not find a place in the FIR, which is the earliest document. Therefore, the participation of A-10 Krishnamurthy in the commission of crime is doubtful. 19. Under those circumstances, in my view, 9th appellant/ A-10 Krishnamurthy is entitled to get the benefit of doubt. Accordingly, 9th appellant/ A-10 Krishnamurthy is acquitted. The conviction and sentence imposed upon him are set aside. In respect of the conviction imposed upon the other appellants/ A-1 to A-6, A-8 and A-9 in respect of various charges are liable to be confirmed and accordingly confirmed. 20. Accordingly, 9th appellant/ A-10 Krishnamurthy is acquitted. The conviction and sentence imposed upon him are set aside. In respect of the conviction imposed upon the other appellants/ A-1 to A-6, A-8 and A-9 in respect of various charges are liable to be confirmed and accordingly confirmed. 20. As regards the sentence, the trial court thought it fit to impose sentence of seven years for the offence under Section 304, Part II upon A-1 and A-2 and for 304, Part II read with 109, IPC upon A-3 to A-6 and A-8 to A-9, but did not impose separate sentence for other offences. 21. Since the occurrence took place in retaliation to the earlier incident, the sentence of seven years, in my view, could be reduced to the sentence of five years. Accordingly, the sentence alone is modified to the effect that the appellants 1 and 2/ A-1 and A-2 for the offence under Section 304, Part II, IPC and the appellants 3 to 8/ A-3 to A-6, A-8 and A-9 for the offence under Section 304, Part II read with 109 IPC and each sentenced to undergo R.I., for five years. 22. In the result, the appeal is allowed in so far as 9th appellant (A-10) is concerned and the appeal is dismissed as against the appellants 1 to 8 with the above modification in the sentence alone. The trial court is directed to take steps to secure the custody of the appellants 1 to 8 to undergo the remaining period of sentence.