ORDER A.S. Venkatachalamoorthy, J. The appellants herein as accused-1 to 4 were convicted by the Additional Sessions Judge, Coimbatore, in Sessions Case No. 130 of 1992 for the offences detailed hereunder: as against A-1: found guilty under Secs. 449 ; 307 read with 34 and 302, I.P.C., and sentenced to 10 years R.I. and fine, 7 years R.I., and fine, and life imprisonment respectively. as against A-2: found guilty under Secs. 448 ; 307 I.P.C. and 25(1) (a) of the Arms Act and sentenced to one year R.I. and fine, 7 years R.I. and fine and one year R.I. respectively. as against A-3: found guilty under Secs.448 and 307, I.P.C. and sentenced to one year R.I. with fine and seven years R.I. with fine respectively. as against A-4: found guilty under Secs. 448 and 307, I.P.C. and sentenced to one year R.I. with fine and 1 Years R.I., with fine respectively and being aggrieved by the said judgment, preferred the above appeal. 2. The prosecution in its endeavour to bring home the guilt of the accused, examined P.Ws. 1 to 20, marked Exs.P-1 to P-31 and produced M.Os.1 to 14. 3. The case of the prosecution can be set out briefly as under: P.Ws. 1 and 2 are the employees in the beef stall/mutton stall of P.W.4. P.W.4 is the uncle of the deceased. P.W.5 is the brother of P.W.4. A-1 and A-4 are brothers while A-2 and A-3 are their friends. Sometime prior to the occurrence, 3rd accused/ 3rd appellant's brother by name Annadurai was murdered and in that regard, P.W.4 and his brothers were prosecuted. However, the Court found them not guilty and they were acquitted. Ever since then, there has been enmity between P.W.4 on the one hand and A-3 on the other hand. In the pork mutton stall of P.W.4, apart from P.Ws. 1 and 2, the brother of Mariappan (P.W.4) viz., P. W.5 and one Allimuthu were also working and they used to stay in the house-shed of P.W.4. On the day in question, that was on 10.5.1990 night, P.W.5 and Allimuthu went to see a movie while P.Ws. 1, 2 and 4 as usual, slept in the house-shed of P.W.4 and closed the shed, where the pigs are being kept and to have a watch during night time, they used to keep an electric bulb burning with a capacity of 100 watts. 1, 2 and 4 as usual, slept in the house-shed of P.W.4 and closed the shed, where the pigs are being kept and to have a watch during night time, they used to keep an electric bulb burning with a capacity of 100 watts. At about 4.30 a.m. on 11.5.1990, A-1 to A-4, removing the patti, entered the house of P.W.4. By that time, P.W.3 and one Murugan, who also came there after witnessing a movie in the cinema theatre, by standing near a thorny bush, were watching as to what was going on in the house of P.W.4 Mariappan. P.W.4, on hearing gunshot, woke up and realised that there was bleeding in his left hand (axillary portion). P.Ws.1 and 2 also woke up and all of them viz. P.Ws.1, 2 and 4 saw A-2 having a country gun in his hand and smoke was emanating from it. A-3 told P.W.4 that he had escaped after murdering his brother Annadurai and that he would not go without finishing him off and saying so, stabbed P.W.4 with a bichua knife on the left chest, right chest and right side of the stomach. A-4 also stabbed P.W.4 with a bichuva knife on the left side of the right hand and on the upper side so also on the right flank. Seeing P.W.4 being stabbed like that, the deceased came to prevent. The first accused, at that time, stabbed the deceased with a spear (Eiti) and the intestine of the deceased came out. P.Ws.1 and 2 raised an alarm and on hearing this, neighbours came there and immediately thereafter, A-1 to A-4 ran away towards west. Very shortly thereafter, P. W.5 came there and in an auto, the deceased and P.W.4 were taken to the Government Hospital, Pollachi. P.W.1 thereafter went to the Pollachi Town Police station and gave a complaint to the Sub Inspector of Police P.W. 18. To the dictation of P.W. 1, the Sub Inspector wrote down the complaint and the same was read over to him and thereafter, P.W. 1 affixed his left hand thumb impression. The said complaint is Ex.P-1 and on the basis of the same, the Sub Inspector registered Cr.No. 305 of 1990 under Secs.448 , 324 and 307 , I.P.C. and Sec.25(1a) of the Indian Arms Act. The said complaint is Ex.P-1 and on the basis of the same, the Sub Inspector registered Cr.No. 305 of 1990 under Secs.448 , 324 and 307 , I.P.C. and Sec.25(1a) of the Indian Arms Act. Ex.P-24 is the F.I.R. and the Sub Inspector thereafter, sent the same to the Judicial Magistrate No.1 at Pollachi and copies to his superiors. At the Government Hospital, P.W.9 Dr.Jothi Arunachalam examined P.W.4 at about 5.35 a.m. on 11.5.1990 and to whom P.W.4 told that he was attacked by two known persons with knife and gun at his residence at 5 a.m. on 11.5.1990. The Doctor gave first aid emergency treatment to P.W.4 and referred him to the Coimbatore Government Medical College Hospital for further treatment. Ex.P-10 is the wound certificate given by him. In the said certificate, the Doctor has noted the injuries which he found on P.W.4, as under: “(1) Incised wound 4 cm × 2 cm × 2 1/1 cm over (R) side chest wall. (2) Incised wound 10 cm × 4 cm × 2 cm over (1) Upper arm exposing the muscles. (3) Incised wound 3 cm × 2 cm × 1/1 cm over anterior aspect of (1) side of chest. (4) Incised wound 3 cm × 1/1 cm × 1/1 cm over (R) Hypochondrium. (5) Incised wound 5 cm × 3 cm over (R) Upper arm; after first aid emergency treatment the patient was referred to the C.M.C. Hospital for further treatment. CMCH Medical Report received on 6.4.1991. The details of the medical report is mentioned in the wound certificate. Admitted for multiple stab injuries on exploration (1) Upper arm - axilla subscapular vessel bleeding was ligated. (2) Left Elbow Division of Radial Nerve was tagged. × ray. 4181 × ray AP No fracture. 4180 × ray skull A.P. no fracture. 4179 × ray right arm A.P. no fracture. 4178 × ray left elbow no fracture. The Doctor had opined in the said certificate that injury No.2 is grievous in nature. On the same day, the deceased was also brought to the Hospital and he was immediately referred to the CMC. Hospital, Coimbatore. P.W.10 is the Doctor at the C.M.C. Hospital, Coimbatore, who admitted both the deceased and P.W.4 at about 7.15 a.m. on 11.5.1990. Ex.P-11 is the Accident Register copy of the deceased while Ex.P-12 is the accident register copy of P.W.4. Hospital, Coimbatore. P.W.10 is the Doctor at the C.M.C. Hospital, Coimbatore, who admitted both the deceased and P.W.4 at about 7.15 a.m. on 11.5.1990. Ex.P-11 is the Accident Register copy of the deceased while Ex.P-12 is the accident register copy of P.W.4. Both the deceased and P.W.4 were thereafter admitted in the Trauma Ward for treatment. P.W.12 is Dr.Premalatha, who examined P.W.4 at 1 p.m. on 11.5.1990 and treated him. When the Doctor examined P.W.4, he was conscious and oriented. However, the deceased inspite of the treatment died at about 5.15 a.m. on 13.5.1990. On the basis of the death intimation, the Sub Inspector P.W.18, altered the crime as one under Sec. 302, I.P.C. and prepared Express Report Ex.P-25. The Sub Inspector thereafter sent the express report to Judicial Magistrate No.1, Pollachi and copies to his superiors. P.W.20, the then, Inspector of Police, who received the copy of the FIR as originally registered on 11.5.1990 under Sec. 307, I.P.C. etc. took over the investigation. On the same day, at about 7.15 a.m., he inspected the scene of occurrence and prepared Ex.P-30 sketch and also Ex.P-2 observation mahazar in the presence of P.W.6 and another. At about 8.30 a.m. he seized the blood stained mats M.O.5, blood stained lungi M.O.6. a portion of the blood stained cement floor M.O.7; a portion of the ordinary cement floor M.O.8 under Ex.P-3 mahazar in the presence of witnesses. At the scene of occurrence, the inspector examined P.Ws.1 to 3, P.W.6, Allimuthu, Rajendran and Murugan and recorded their statements. On 12.5.1990, the Inspector went to the Government Hospital, Coimbatore and examined P.W.4 and the deceased and recorded their statements. At about 11.30 a.m. from P.W.4, the Inspector recovered M.O.4 blood stained white dhoti under Ex.P-4 in the presence of P.W.7 and another. At about 12.30 p.m. he recovered M.O.9 blood stained shirt and M.O.10 blood stained banian and M.O.11 blood stained lungi from the deceased under Ex.P-5 in the presence of P.W.7 and another. At about 8 a.m. on 13.5.1990, he received the information about the altering of the crime into one under Sec. 302, I.P.C. and also the copy of the Express Report Ex.P-25. Between 9 a.m. and 11 a.m. on 13.5.1990, he examined P.Ws.1 to 3, Murugan, Kuppusamy and Kunjammal at the hospital and recorded their statements at the inquest. At about 8 a.m. on 13.5.1990, he received the information about the altering of the crime into one under Sec. 302, I.P.C. and also the copy of the Express Report Ex.P-25. Between 9 a.m. and 11 a.m. on 13.5.1990, he examined P.Ws.1 to 3, Murugan, Kuppusamy and Kunjammal at the hospital and recorded their statements at the inquest. Ex.P-31 is the inquest report and after the inquest, the body was handed over with a requisition to the Government Hospital, Coimbatore to conduct post mortem. P.W.14, the Doctor at the C.M.C. Hospital, Coimbatore, pursuant to the requisition Ex. P-14, conducted autpsy on the body on 13.5.1990. Ex.P-15 is the post mortem certificate, wherein, the Doctor has noted the following: “(1) An oblique stab injury situated on upper abdomen on the left side which was found to be sutured with black suts. Margins regular and ends pointed measuring 6 cm × 4 cm × entering abdominal cavity. Underlying structures found to be sutured. On dissection, peritoneum hypermic and soiled with foul smelling material with 1250 cc blood with clots. The following structures are found to be sutured: (a) Sutured wound in the measentery in two places adherent, muddy. (b) Anastomatic wound noted in the small intestine close to duodiuno jujujul flexture. (c) Sutured wound in the small intestine. Mesentery congested blood clots seen in areas. (2) Sutured surgical upper midline incision seen in the front of abdomen 25 cm × 2 cm × entering the abdominal cavity. (3) Sutured drainage wound left flank 3 cm × 2 cm entering pelvic cavity surgical. (4) Intravenous treatment wound both hands seen. Hyoid in tact. Heart: Both chambers empty. Liver, spleen: Cutsection: Pale. Lungs: Congested. Kidneys: cut section pale. retroperitoneal blood clots 25 gms. seen, Stomach and small intestine contains 100 ml brown coloured. nil specific smell. Mucosa pale. Bladder: empty. Brain surface vessels pale cut section pale.” In the said certificate, the Doctor had opined that the deceased would have died of shock and haemorrhage due to external stab wound No. 1 with corresponding internal injuries sustained by him. The Inspector of Police thereafter proceeded with the investigation and at about 6 a.m. on 19.5.1990, he arrested A-1 and A-4 at Unjavelampatti Bus stand in the presence of P.W.8 and another. Upon arrest, A-1 gave a confession statement and the admissible portion in the said statement is Ex.P-6. The Inspector of Police thereafter proceeded with the investigation and at about 6 a.m. on 19.5.1990, he arrested A-1 and A-4 at Unjavelampatti Bus stand in the presence of P.W.8 and another. Upon arrest, A-1 gave a confession statement and the admissible portion in the said statement is Ex.P-6. Similarly A-4 also gave a confession statement and the admissible portion in the said statement is Ex.P-7. A-1 then took the police party and the witnesses to a bridge under Pollachi-Udumalapet Road and from a thorny bush, he took out M.O.1 spear and the same was recovered under Ex.P-8 mahazar signed by P.W.8 and another. Thereafter, at about 9.15 a.m., A-4 from the same bush took out M.O.3 bichuva knife and the same was recovered under Ex.P-9 mahazar. The Inspector thereafter returned back to the police station and took steps to send the weapons to the Court of Judicial Magistrate. On 20.5.1990, he examined the Doctors both at the Government Hospital, Pollachi as well as Coimbatore. At 6 a.m. on 26.5.1990, he arrested A-2 and A-3 in Thillai Nagar Bus stand in presence of P.W.19 and one Murugan. On arrest, A-3 gave a confession statement and the admissible portion of the same is Ex.P-26. The police party and the witnesses proceeded to a place led by A-3 and from a bush near a Margosa tree in the land of one Mani in Makkinampatti Road, A-3 took out M.O.2 bichuva knife and the same was recovered under Ex.P-28 mahazar in the presence of witnesses. Then the police party was taken by A-2 to Negamam. From a bush near the house of one Rangammal, A-2 took out M.O. 13 country gun, which he has already hidden there and the same was recovered under Ex.P-29 mahazar in the presence of witnesses and a pellet M.O.14 in the said country gun was also recovered. The recovered articles were despatched to the Court for sending the same for chemical analysis. Ex.P-20 is the chemical analysis report while P-21 is the report of the Serologist. After completing the investigation, the Inspector of Police filed his report on 2.8.1991. 4. P.W. 14 is the Doctor, who conducted post mortem on the body of the deceased. He noted an oblique stab injury situated on upper abdomen on the left side which was found to be sutured with suts. After completing the investigation, the Inspector of Police filed his report on 2.8.1991. 4. P.W. 14 is the Doctor, who conducted post mortem on the body of the deceased. He noted an oblique stab injury situated on upper abdomen on the left side which was found to be sutured with suts. The Doctor also found the margins to be regular and ends pointed measuring 6 cm × 4 cam × entering abdominal cavity and on dissection, he found peritoneum hypermic and soiled with foul smelling material with 1250 cc blood with clots and according to him, the said injury is sufficient in the ordinary course of nature to cause death. Though the doctor has stated that he is not in a position to give opinion whether that injury could have been caused by a spear like M.O. 1, the fact remains that the deceased died only of homicidal violence. 5. As far as the injury on P.W.4 is concerned, Ex.P-10 the wound certificate issued by the Doctor P.W.9 would clearly show that P.W.4 sustained 4 incised wounds. The Doctor has categorically deposed before Court that injuries 1, 3 and 4 are possible by a sharp edged weapon like M.O.1 Bichuva knife and the other injury M.Os.1 and 5 are possible by any sharp edged weapon like M.O.1 bichuva knife. There is no suggestion on the side of the defence that those injuries could have been happened in any other manner except by stabbing with the weapons mentioned supra or that these injuries are self inflicted. Out of the above injuries, the Doctor has opined that injury No.2 is grievous in nature. From the medical evidence let in by the prosecution, it is amply clear that P.W.4 was attacked by some one with deadly weapons. 6. The case of the prosecution, as spoken to by P.Ws.1, 2 and 4 is to the effect that on 10.5.1990, as usual, they were sleeping in the house-shed of P. W.4 and close to that, the pigs were being kept and to have a watch, an electric bulb with 100 watts capacity was made to burn. All the three witnesses have, in one voice, deposed that at about 5 a.m. on 11.5.1990, hearing a gun shot, all of them woke up and P.W.4 realised that he had sustained an injury on the left armpit (axillary portion) and there was bleeding. All the three witnesses have, in one voice, deposed that at about 5 a.m. on 11.5.1990, hearing a gun shot, all of them woke up and P.W.4 realised that he had sustained an injury on the left armpit (axillary portion) and there was bleeding. They all saw A-2 having a country gun in his hand and from which smoke was emanating. A-3 at that time told P.W.4 that he and others, after murdering his brother Annadurai, escaped and that he would not go without finishing him off and saying so, stabbed P.W.4 with bichuva knife on his left chest, right chest and right side of the stomach. Following that, A-4 also stabbed P.W.4 with a bichuva knife on the right hand and also on the right flank. Seeing this, the deceased came to prevent and then A-1 stabbed the deceased with a spear on the stomach once and the intestine came out from the stomach of the deceased. Thereafter, when P.Ws.1 and 2 shouted, the neighbours arrived there. Immediately, A1 to A4 ran towards west. Thereafter, P.W.1 proceeded to the police station and gave Ex.P-1 complaint to P. W. 18 and a crime was registered. 7. Learned counsel appearing for the appellants, in his endeavour to persuade this Court to reject the case of the prosecution, made the following submissions: (1) That the evidence of P.Ws.1 and 2 cannot be safely accepted since they are interested in P.W.4. (2) That there was light in the house-shed of P.W.4 has not been mentioned in Ex.P-1 and hence a serious doubt would arise, whether they could have identified the assailants in that dark hours. (3) P.W.4 has number of enemies and only likely that he was attacked by some of them. (4) When according to P. W.4, the neighbours came hearing the noise and they also saw the occurrence, the failure on the part of the prosecution to examine them when considered in the light of the admitted fact that there has been enmity between P.W.4 and A-3, it would not be safe to rely on the testimonies of P.Ws.1 and 2. 8. Let us now proceed to consider the various submissions made by the learned counsel for the appellants/ accused, one by one. 9. Submission Nos.I and IV can be considered together. It is true that P. Ws. 1 and 2 are the employees of P.W.4. 8. Let us now proceed to consider the various submissions made by the learned counsel for the appellants/ accused, one by one. 9. Submission Nos.I and IV can be considered together. It is true that P. Ws. 1 and 2 are the employees of P.W.4. The case of the prosecution is that the occurrence took place in the early hours i.e. at about 5 a.m. on 11.5.1990 in the house-shed of P.W.4 Murugan. P.Ws.1 and 2 have claimed that they have been staying only in the house of P.W.4 and this has not been disputed by the defence. Hence, they cannot be termed as chance witnesses. In such an event, the Court can safely come to the conclusion that at the time of occurrence, P. Ws. 1 and 2 normally should have been in house of P.W.4. Once we come to such a conclusion, then we cannot simply reject the testimonies of P.Ws.1 and 2, if otherwise their testimonies infuse confidence in the minds of the Court. We have carefully examined the testimonies of P.Ws. 1 and 2, in particular, the cross examination and we do not find anything which would persuade this Court to discredit their testimonies. Much was commented on the failure of P.Ws. 1 and 2 from going to the rescue of P.W.4. Both the witnesses have categorically stated that when they attempted to go near and help P.W.4, they were threatened by the 2nd accused and naturally. P.Ws.1 and 2, who were unarmed should have got scared and did not proceed near to help P.W.4. The complaint to P.W. 18, the Sub-Inspector of Police was given by P.W.1 even by 5.30 a.m. and that the said complaint contains all the relevant details. With regard to the submissions of non-examination of the independent witnesses is concerned, it has to be pointed out that from the evidence of P.Ws.1 and 2, it is amply clear that only after the attack by A-3 and A-4 on P.W.4 and by A-1 on the deceased, P.Ws. 1 and 2 raised alarm and only subsequently, the neighbours arrived. That being so, the neighbours could not have witnessed the attack on the deceased and P.W.4. Of course, P.W.4 stated in his cross-examination that the occurrence was witnessed by others. 1 and 2 raised alarm and only subsequently, the neighbours arrived. That being so, the neighbours could not have witnessed the attack on the deceased and P.W.4. Of course, P.W.4 stated in his cross-examination that the occurrence was witnessed by others. One has to remember that it was P.W.4, who received as many as 5 stab injuries and hence he might not have noted correctly and remembered as to when exactly the neighbours arrived at the scene of occurrence. We do not propose to attach any importance to the said deposition of P.W.4 once we accept the testimonies of P.Ws.1 and 2. In fact, we also point out that P.W.4 has deposed that the occurrence went on for one hour, which on the face of it, has to be rejected. 10. P.W.4, as already stated, had received as many as 5 incised injuries, has deposed that before attacking him, the first accused came out openly saying that P.W.4 escaped even after murdering his brother Annadurai and that he would not go without finishing him off. After saying so, P.W.4 was attacked by A-3. That apart, there was also an electric bulb burning with 100 watts capacity nearby and that because of which the witnesses could identify the assailants. Simply because the availability of the light has not been mentioned in the complaint given by P. W. 1 to P.W.18, this Court need not disbelieve that part of the prosecution case particularly when the Court is satisfied from other materials available on record. Hence, there could not have been any difficulty for P.Ws.1, 2 and 4 to identify the assailants in those circumstances. P.W.4, who had sustained injuries certainly would not have left the real assailant and implicated the accused falsely. An argument has been advanced to the effect as to how many persons attacked P.W.4, there is no consistent version viz., whether two persons or four persons. Inasmuch as now before Court P.W.4 has categorically stated that he was attacked only by two persons viz., A-3 and A-4, this Court does not find anything serious in the so-called discrepancy. In the result, this Court is inclined to accept the testimonies of P.Ws.1, 2 and 4. 11. This Court may say that though a submission is made to the effect that the deceased and P.W.4 could have been attacked by some other enemies of P.W.4, the same has not been substantiated. In the result, this Court is inclined to accept the testimonies of P.Ws.1, 2 and 4. 11. This Court may say that though a submission is made to the effect that the deceased and P.W.4 could have been attacked by some other enemies of P.W.4, the same has not been substantiated. Only a bald suggestion was put to the witness P.W.4 in this regard. As to who are all the enemies of P.W.4 has not even been mentioned before Court by way of putting it to the witnesses. 12. Learned Counsel for the appellant then contended that even assuming the prosecution has proved its case beyond all reasonable doubts, A-1 cannot be found guilty under Sec. 302 , I.P.C. and at best he can be held guilty only under Sec. 304, Part II, I.P.C. In support of his contention, the learned counsel put forth two submissions viz., (a) that A-1 had no motive to attack the deceased and only when the deceased came suddenly in the quarrel between himself and P.W.4, he stabbed him, that too only once. (b) Secondly, he contended that the deceased died only after two days at the C.M.C. Hospital, Coimbatore and that the nature of treatment given to the deceased during that period has not been made known to the Court by marking the case sheet or by examining the doctor concerned, who treated the deceased. 13. Straight away, we may mention that there is considerable force in the above submissions made by the learned counsel for the appellants. The testimonies of P.Ws.1, 2 and 4 are to the effect that after the attack by A-3 and A-4 on P.W.4, the deceased came to prevent when he was stabbed by the first accused with the spear on his stomach. It is not the case of the prosecution that these appellants/sccused had any motive or grievance against the deceased. He might have had the knowledge that the injury intended to be inflicted would be sufficient in the ordinary course of nature to cause death, but certainly, he had no intention even according to the prosecution to inflict such an injury. 14. He might have had the knowledge that the injury intended to be inflicted would be sufficient in the ordinary course of nature to cause death, but certainly, he had no intention even according to the prosecution to inflict such an injury. 14. The ruling relied on by the learned counsel for the appellants in this regard, is K. Ramakrishnan Unnithan v. State of Kerala , 1999 S.C.C. (Crl.) 410 and we are of the view that the same will apply to the facts and circumstances of this case. That was also a case where the accused stabbed the deceased on his abdomen with knife and in fact, the Doctor noted an incised wound of 4 cm long below the umbilicus, left to the mid line of the body with a part of the intestine protruding out and he had also deposed that the said blow no doubt was quite severe. The Court took the view that in the absence of motive and intention and particularly when a single stab was given, the culprit can be held guilty only under Sec. 304, Part II, I.P.C. We deem it necessary to quote the relevant paragraph: “The question that remains for consideration is whether on the materials on record it can be said that the appellant gave the blow on the deceased with the intention of causing murder of the deceased so as to be convicted under Sec. 302, I.P.C. The eyewitness account of the three eyewitnesses is to the effect that when P.W.1 cried aloud, his sister rushed there and at that point of time, his father, the deceased came out, opening the door and asked as to why his son was being beaten up and then the appellant stabbed the deceased on his abdomen with the knife. The post mortem report of the deceased indicates existence of a sutured incised wound inverted L-shaped on the left side of the abdomen, the vertical limb was parallel to the midline 4 cm. in length and the horizontal limb from its upper end measured 3 cm and was placed 1.3 cm to the left of the midline and the junction of the two limbs were at the level 25 of umbilicus. The wound entered the abdominal cavity. in length and the horizontal limb from its upper end measured 3 cm and was placed 1.3 cm to the left of the midline and the junction of the two limbs were at the level 25 of umbilicus. The wound entered the abdominal cavity. The doctor P.W.14 who was working as a Tutor in Surgery, Medical College, Trivandrum and was in the casualty ward on 17.4.1985, in his evidence stated that the deceased had an incised wound 4 cm. long below the umbilicus, left to the midline of the body with a part of the intestine protruding out and that is the only injury. The doctor who conducted the autopsy, P.W.9 in his evidence also stated that though there are three injuries on the deceased as per the post mortem report, but injuries 1 and 3 are surgical injuries and injury 2 is the inflicted injury. Thus it is established beyond reasonable doubt that the appellant had given one blow but the blow no doubt was quite severe, as a result of which the intestines had protruded out. It is however crystal clear that the appellant had no animosity against the deceased and he was involved because of the altercations with P.W.1. The scenario in which the appellant has been stated by the eye-witnesses to have given one blow on the deceased, is difficult for us to hold that he gave the blow in question either with the intention of causing murder of the deceased or he can have said to have the requisite knowledge that death would otherwise be the inevitable result. In such a situation, even on accepting the prosecution case, we hold that the accused did not commit the offence under Sec. 302 , but under Part II of Sec. 304, I.P.C. We, accordingly, set aside the conviction of the appellant under Sec. 302 , I.P.C. and instead, convict him under Sec. 304, Part II …” 15. In such a situation, even on accepting the prosecution case, we hold that the accused did not commit the offence under Sec. 302 , but under Part II of Sec. 304, I.P.C. We, accordingly, set aside the conviction of the appellant under Sec. 302 , I.P.C. and instead, convict him under Sec. 304, Part II …” 15. We also find substance in the submission that the non-examination of the Doctor, who treated the deceased at the C.M.C. Hospital, Coimbatore and failure to produce the case sheet would come to rescue of the accused from being found guilty under Sec. 302, I.P.C. As rightly pointed out by the learned counsel for the appellant, had the case sheet been marked and the Doctor who treated the deceased was examined, the accused would have been in a position to examine the same and cross examine on the aspects required. 16. In this regard, the learned counsel placed reliance on the ruling of the Supreme Court in Harish Kumar v. State (Delhi Administration) , A.I.R. 1993 S.C. 973 wherein the Supreme Court pointed out that the Court was not given proper materials to examine the nature of treatment given to the deceased. We hereunder extract the two relevant paragraphs: “The facts in brief are that on March 19, 1973 being the Holi Day, the appellant and one Rajan Mani went to the shop of the deceased bearing No.l259/A/A situated at Balbir Nagar, Shahdra, New Delhi and requested him to close the tea shop which he was vending and asked him to take part in playing Holi. Thereon the deceased refused to accede to their request. Thereafter, in a huff the appellant and Rajan Mani went away with a dire threat to the deceased and his father Ved Prakash, P.W.1, who remonstrated against the threat. One hour thereafter the appellant came holding a Gupti (sharp edged weapon) in his right hand to the shop by which time, the deceased was closing the shop. Rajan Mani took the deceased in his arms and held him back. The appellant inflicted a fatal blow near the neck and also gave other minor injuries. P.W.1 and P.W.3 have seen the occurrence. The deceased was made to walk for a distance of 25-30 feet and thereafter he fell down at the house of P.W.4. Then he was taken to the hospital. The appellant inflicted a fatal blow near the neck and also gave other minor injuries. P.W.1 and P.W.3 have seen the occurrence. The deceased was made to walk for a distance of 25-30 feet and thereafter he fell down at the house of P.W.4. Then he was taken to the hospital. The deceased died two days thereafter, namely, on March 21, 1973. P.W.12, the Doctor conducted the autopsy and found that there were as many as nine injuries and Injury No. 2 was found to be fatal which in the opinion of the doctor was sufficient to cause death in the ordinary course of nature. P.W.1 is the father of the deceased. P.W.3 is another independent witness who happened to come over to the area to his sister's house to play holi. …We have seen the nature of the injuries and also the time gap between the time of infliction of the injury till the date of death which was two days after the injury was inflicted. We have no sufficient material as to the naure of the treatment given to the deceased during those two days.” We accept the submissions made by the learned counsel for the appellant in this regard and we have no hesitation to hold that A-1 can be held guilty only under Sec. 304 , Part It, I.P.C. and not under Sec. 302, I.P.C. 17. As far as A-1 is concerned, inasmuch as we found him guilty only for an offence under Sec. 304 , Part II, I.P.C, the conviction and sentence under Sec.449, I.P.C. have to be set aside. But however, he is liable to be convicted under Sec.448, I.P.C. and we deem it proper to award rigorous imprisonment for one year. We deem it proper to award a sentence of rigorous imprisonment for seven years in respect of this conviction under Sec. 304, Part II, I.P.C. 18. The Inspector of Police has categorically deposed that on arrest, A-2 gave a confession statement and the admissible portion of the same is Ex.P-27 and pursuant to the said statement, he took the police party and the witnesses to a place near Negamam and produced M.O.13 country gun and the same was recovered under Ex.P-29 mahazar in the presence of witnesses viz., P.W.19 and another. Learned counsel for the appellants contended that the testimony of P.W. 19 cannot be accepted because he is an auto-rickshaw owner and he used to park his auto-rickshaw near Pollachi Police Station and therefore, he is an obliging witness. We do not see any force in this submission. Simply because P.W. 19 is parking his autorickshaw near Pollachi Police station, he cannot be termed as a police witness and he was deposed falsely before Court. We accept the testimonies of P.Ws.19 and 20 and hold that the country gun M.O.12 was recovered only pursuant to the statement made by A-2. Once we come to such conclusion, we have to hold that A-2 is guilty of an offence under Sec. 25(1b)(a) of the Arms Act. However, with regard to A-2 and A-4, we have no hesitation to hold that they are guilty under Sec.448, I.P.C. The conviction and sentence in this regard are hereby confirmed. As far as the attack on P.W.4 is concerned, the materials available on record would only show that only A-3 and A-4 are guilty of the said offence and not the other accused. The conviction as against A-2 under Sec. 307 , I.P.C. and conviction as against A-1 under Sec. 307 read with 34, I.P.C. are hereby set aside. While convicting A-3 and A-4 under Sec. 307, I.P.C, we impose a sentence of rigorous imprisonment for five years instead of seven years. 19. In the result, A-1 is found guilty under Sec.48, I.P.C. and sentenced one year R.I. and to pay a fine of Rs. 500. A-1 is guilty under Sec. 304, Part II, I.P.C. and sentenced to undergo rigorous imprisonment for seven years. The conviction and sentence under Sec. 302, I.P.C. are set aside. A-2 is guilty under Sec.25(1a)(b) of the Indian Arms Act and sentenced to undergo R.I. for one year. A-3 and A-4 are guilty under Sec. 307, I.P.C. and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.500. A-1 and A-2 are acquitted of the conviction under Sec. 307 read with 34 and 307, I.P.C. respectively. The appeal is allowed in part. 20. It is reported that the appellants/sccused are on bail. Hence, the learned I Additional Sessions Judge, Coimbatore, shall take steps to commit them to jail to undergo the remaining period of sentence. B.S.-----Appeal allowed in part.