Judgment :- A. PACKIARAJ, J. The appellants are A-1 to A-4 in S.C. No. 240 of 1990 on the file of the Sessions Judge, South Arcot, Vallalar Division, Cuddalore. A-4 alone has been convicted for an offence under S. 302 and 324 IPC and has been sentenced to life imprisonment and six months imprisonment respectively, whereas A-1 to A-3 have been convicted only for an offence under S. 324, IPC and has been sentenced to pay a fine of Rs. 500/-, in default to undergo rigorous imprisonment for a period of three months imprisonment. Aggrieved by the same the present appeal has been preferred. 2. Crl. R.C. No. 737 of 1995 has been preferred by one Krishnamoorthy (PW. 1), son of the deceased against the acquittal of A-1 to A-3 of offence under S. 302, IPC and has also raised a ground that though these three respondents namely A-1 to A-3 has been convicted for an offence under S. 324, IPC, has been lightly let off with the sentence of Rs. 500/- fine, while A-4 has been awarded six months rigorous imprisonment for an offence under S. 324, IPC who also according to the learned counsel stands in the same footing. 3. The substance of the charge levelled against the accused are that on 25-11-89 at about 7.00 a.m. at Kovilampoondi village at Cuddalore District they attacked the prosecution party and caused injury to P.W. 1. In the course of the same transaction when the deceased Muthukrishnan Intervened, he was knifed to death by A-4 and thereby the deceased died on 30-12-89 at about 1.00 a.m. in the Government Hospital, Madras and thereby the accused are said to have committed an offence punishable under S. 307 and 302, IPC. The accused pleaded not guilty and hence the trial. 4. The prosecution case in brief is as follows : (a) P.W. 1 is the son of the deceased. P.W. 3 is the wife of P.W. 1, while P.W. 4 is the wife of the deceased. The deceased and the prosecution witnesses are residents of Kovilampoondi village. The accused A-2 to A-4 are the sons of A-1 and they are also residents of the same village and in fact, they are the neighbours to the prosecution witnesses. P.W. 3 is the wife of P.W. 1, while P.W. 4 is the wife of the deceased. The deceased and the prosecution witnesses are residents of Kovilampoondi village. The accused A-2 to A-4 are the sons of A-1 and they are also residents of the same village and in fact, they are the neighbours to the prosecution witnesses. There was a pathway in between the house of the prosecution witnesses and the accused, which exclusively belonged to the prosecution party and hence they had put a thorny fence abutting the pathway and had also put a lock on the gate. On 23-11-89 the prosecution party found the lock to be missing and hence shouted at the accused presuming that it was they who were responsible for taking away the lock and hence there was a quarrel between both the families on account of the same. Again on the morning of 25-11-89 at about 7.00 a.m. when the deceased came out of his house, he found the lock along with the cycle chain fastened to the gate missing, The deceased Muthukrishnan reported the matter to P.W. 1. Aggrieved by this, P.W. 1 lamented standing in front of his house. At that time hearing the abuses of P.W. 1, A-1 to A-3 armed with casuarina sticks and A-4 armed with the knife came out and questioned P.W. 1 as to how he can go on shouting like this. So saying, A-1 beat P.W. 1 on his cheek with the stick on his hand, A-2 beat him on right ankle with the stick on his hand and A-3 beat him in between the left knee and the ankle with the casuarina stick, followed by A-1 who beat him with the casuarina stick. P.W. 1 raised hue and cry and on hearing this the deceased namely the father of P.W. 1 came to the scene and tried to intervene, whereupon A-4 pushed him down and shouting that he should be done to death, inflicted a blow on the head of the deceased and then all the accused ran away. The said incident was witnessed by P.W. 3 and P.W. 4 the wife and mother of P.W. 1. All of them raised hue and cry and one Kumaran, Ramalingam and Sundaramoorthy on hearing the cries came to the spot. The said incident was witnessed by P.W. 3 and P.W. 4 the wife and mother of P.W. 1. All of them raised hue and cry and one Kumaran, Ramalingam and Sundaramoorthy on hearing the cries came to the spot. Just then an auto rickshaw had come to the place and the injured namely the father of P.W. 1 was taken to the Government Hospital Chidambaram at about 8.00 or 8.30 a.m. b) P.W. 6 Doctor Balachandran, Civil Assistant Surgeon attached to Kamaraj Government Hospital, Chidambaram on 25-11-89 at about 8.00 a.m. admitted the deceased who was then injured, for certain injuries alleged to have been caused on 25-11-89 at about 7.00 a.m. in the house of the deceased by two known persons with the knife and sticks and found three injuries on him. Ex. P-5 is the Accident Register relating to the injuries found on the deceased, who was injured then. Thereafter at about 8.05 a.m. he examined P.W.1 who was also injured on 25-11-89 during the same course of the incident and found seven injuries in all. Ex. P-6 is the Accident Register relating to P.W. 1. Since the condition of the said Muthukrishnan was serious, Doctor P.W. 6 referred him to the Government Hospital Cuddalore for treatment. However as to when the injured was taken to Cuddalore Government Hospital and what was the treatment offered to him was not spoken to by any of the witnesses. P.W. 7 is the Doctor attached to the Government Hospital Madras, who speaks to the effect that on 26-11-89 Muthukrishnan referred from the Cuddalore Head Quarters hospital was admitted for treatment of the head injury, said to have been sustained by him on 25-11-89 at about 7.00 a.m. He was of the opinion that the Doctor had taken an X-ray of the head and it had showed a depressed fracture on the frontal bone. He admitted the injured in the ward and an emergency operation had also been conducted but however, the deceased had succumbed to his injuries on 30-12-89. Ex. P-7 is the death intimation issued by the hospital. c) Meantime it is stated that P.W.10 the Sub-Inspector of Police Killai Police Station who was on Election Duty at Cuddalore, received the telephonic message from constable No. 2807 attached to the said police station about the incident and from there he went to the Government Hospital Cuddalore and recorded Ex. P-7 is the death intimation issued by the hospital. c) Meantime it is stated that P.W.10 the Sub-Inspector of Police Killai Police Station who was on Election Duty at Cuddalore, received the telephonic message from constable No. 2807 attached to the said police station about the incident and from there he went to the Government Hospital Cuddalore and recorded Ex. P-1 at about 12.45 p.m. from P.W. 1. He went back to the police station at about 3.00 O'clock and registered it in Crime No. 287 of 1989 for offences under Sections 341, 324, 323 and 307 I.P.C. He prepared Ex. P-12 the Express F.I.R. and sent the originals to the Court and the copies thereof to his superior officers. d) The Inspector of Police, P.W. 11 on receipt of this information at 4.00 p.m. on 25-11-89, reached the scene of occurence at 4.30 p.m. and prepared an Observation Mahazar Ex. P-3 in the presence of P.W. 5 and a Rough Sketch Ex. P-14. At about 5.00 p.m. he recovered Blood stained Earth-M.O. 10, Sample Earth-M.O. 11 under mahazar Ex. P-4. Thereafter he examined P.W. 2, P.W. 3 and P.W. 4 at about 7.00 p.m. He seized M.O.1 to M.O. 7 produced by P.W. 3 under mahazar Ex. P-2. Then he went to the Government Hospital Chidambaram where P.W. 1 was being treated and he examined him. On 30-12-89, he received the death intimation, Ex. P-7. On receipt of the said information, he prepared Ex. P-15 the altered F.I.R. and sent the same to the Court. Then on 31-12-89 at about 6.30 a.m. to 9.00 a.m. he conducted inquest at Madras during which period he examined P.W.1 and other witnesses.Ex. P-16 is the inquest report. After the inquest was over, he prepared Ex. P-8 the requisition to conduct the post mortem on the body of the deceased Muthukrishnan. e) P.W. 8 is the Doctor attached to Government Hospital Madras, who on receipt of the requisition Ex. P-8 to conduct the autopsy, conducted the post mortem on 31-12-89 at about 10.15 a.m. and found the following injuries : Injuries : 1) A diffuse resolving contusion present on the right temporal parietal region of scalp 5 cms above right mastoid process 6 x 11/2 cm. P-8 to conduct the autopsy, conducted the post mortem on 31-12-89 at about 10.15 a.m. and found the following injuries : Injuries : 1) A diffuse resolving contusion present on the right temporal parietal region of scalp 5 cms above right mastoid process 6 x 11/2 cm. 2) Two contusion present on right side of frontal region of scalp, one situated 6 cm above the middle right eye brow, 5 x 1.7 cm and another contusion situated 3 cm above the previous injury, 7 x 3 cm. Both the contusions are in resolving stage. 3) A resolving contusion 3 x 5 cms present on left frontal region of scalp 7cm above the middle of left eye brow. 4) A 'S' shaped linear scar present over left side of frontal parietal regions of scalp 10 cms in length (Surgical). 5) A resolving diffuse contusion present over the occipital region of scalp 16 x 8 cms. 6) On dissection : A part of frontal, parietal and temporal bones are absent 12 x 10 cms. Gel foam packing present covering the surface of brain. Dura matter basent beneath the bony defect. Laceration of frontal lobe of brain on left side present 7 x 3 x 2.5 cms inflitrated by blood clots present. Intra cranial heamorrhage present in left parietal lobe as multiple pin point haemorrhages. 7) A bed sore present on right infra scapular region 7 x 3.5 cms, necretic slough present in its base. 8) A bed sore present on sacral region 16 x 9 cms with necrotic slough present in its base. 9) A bed sore present in occipital region 3.5 x 1 cm. He issued post mortem certificate Ex. P-9. The Doctor was of the opinion that the injured died due to the effects of the head injury sustained by him. After the post mortem was over, the body was handed over to the relations. f) P.W. 10 the Sub Inspector of Police on the directions of the Superior Officer namely P.W. 11 arrested A-2 and A-3 on 30-11-89 in the presence of P.W. 9. A-2 is said to have given a statement, the admissible portion of which has been marked as Ex. P-13 and in pursuance of the same. M.O.8 knife was recovered and M.O. 9 a casuarina stick were recovered in the presence of P.W. 9. A-2 is said to have given a statement, the admissible portion of which has been marked as Ex. P-13 and in pursuance of the same. M.O.8 knife was recovered and M.O. 9 a casuarina stick were recovered in the presence of P.W. 9. A-1 and A-4 are said to have surrendered before the Court on 9-11-89. The Investigating Officer caused all the material objects to be sent for chemical analysis through the Court with the requisition Ex. P-17, Ex. P-18 is the requisition of the Judicial Magistrate to the Forensic Laboratory. After obtaining Ex. P-19 the chemical analysis report and Ex. P-20 and Ex. P-21 the Serologists report and after concluding the investigation he filed the final report against the accused for the above said offences. g) The accused were examined under Section 313 Cr. P.C. with reference to the incriminating materials found against them. They denied having committed any offence and their involvement in the incident. h) The prosecution in order to establish the guilt of the accused had examined P.W. 1 to P. W. 11, marked Ex. P-1 to Ex. P-21 and produced M.Os. 1 to 11. 5. The prosecution had examined the Doctors P.W. 6 to P.W. 8 and P.W. 6 Dr. Balachandran attached to Kamaraj Government Hospital, Chidambaran was the first person to see the injured having been brought at about 8.00 a.m. on 25-11-89 and according to him the found three injuries in all, of which there was only one external injury namely an Incised wound 3 cms. x 2 cms x 11/2 cms. in te left frontal region with suspected frontal bone fracture, bleeding present. The second and third injuries are bleeding from the Nostral the presence of fits on the body as described by the Doctor found in Ex. P-5. The Doctor was of the opinion that the injury No. 1 could have been caused by a weapon like M.O. 8, namely a knife and he found the injured to be serious and hence referred him to the Government Hospital, Cuddalore. P.W. 7 is the Neuro Surgeon attached to Government Hospital at Madras and it is his specific evidence that the patient namely Muthukrishanan was referred from the Government Hospital Cuddalore and he was the person who conducted the operation on the deceased. P.W. 7 is the Neuro Surgeon attached to Government Hospital at Madras and it is his specific evidence that the patient namely Muthukrishanan was referred from the Government Hospital Cuddalore and he was the person who conducted the operation on the deceased. P.W. 7 in his cross-examination has clearly stated that he cannot say as to what was the nature of the injury on the head of Muthukrishnan at the time of admission on 26-11-89 at Madras Government Hospital. However, his specific case is that the injured Muthukrishnan has been referred to him only from the Government Head Quarters Hospital, Cuddalore. What had happened in Cuddalore Hospital has not been brought on record by the prosecution. No attempt whatsoever has been made by the prosecution to establish as to when the injured was taken from Chidambaram Government Hospital to Cuddalore Hospital and what was the treatment, or the First Aid given to him and what was the condition that the Doctor felt at the relevant time in relation to the injuries found on him and what necessitated to refer him to the Government Hospital, Madras is totally absent in the present case. However, we see that there appears to have been one injury on the head and P.W. 7 has conducted a surgery on him to cure the same, but unfortunately the deceased succumbed to the injuries on 30-12-89. The prosecution has examined P.W. 8 the Doctor who conducted the autopsy and he has issued Ex. P-7 the post mortem certificate which would reveal the injuries found on the dead body. We have already narrated in detail, the description of the injuries found on him in our earlier part of the judgment and it may not be necessary for us to reiterate the same. Suffice it to say that there were nine injuries in the body and Injury Nos. 1 to 6 are the Surgical Injuries in relation to a single injury. The rest of the injuries namely 7, 8 and 9 are bed sores and consequently, we see that there was only one injury on the deceased and the Doctor has clearly opined that the death was due to the injury on the head. Therefore, it has been clearly established that the deceased died due to homicidal violence. 6. The rest of the injuries namely 7, 8 and 9 are bed sores and consequently, we see that there was only one injury on the deceased and the Doctor has clearly opined that the death was due to the injury on the head. Therefore, it has been clearly established that the deceased died due to homicidal violence. 6. The next question that arises for consideration is as to whether the accused are responsible for causing the murder of the deceased. The prosecution mainly relies on the evidence of P.W. 1, P.W. 3 and P.W. 4, P.W. 2 having been treated hostile. P.W. 1 is the son of the deceased and is also an injured person and hence his presence at the scene of occurrence cannot be doubted, especially when the incident had taken place in front of his house. P.W. 3 is the wife of P.W. 1 and P.W. 4 is the wife of the deceased. They are also natural witnesses, since they also stay in the same house and the occurrence had taken place in front of the house, which incident admittedly started on the basis of a wordy quarrel between P.W. 1 and the accused and it is on the basis of this, they including the deceased had come out and consequently, we are of the opinion that they are natural witnesses and their presence cannot be doubted at the scene. 7. The specific evidence of these three persons is that about two days prior to the incident, a lock was put up on the gate enclosing the pathway which according to the prosecution exclusively belongs to them. However that lock was found missing and hence presuming that it would have been the accused who were responsible for removing the lock, they shouted at them as they are adjoining to them as a result of which there were wordy altercations between the prosecution party and the appellants. Again on the fateful day i.e. on 25-11-89 when the deceased came out of his house at about 6.30 a.m. or 7.00 a.m. he found the lock along with the cycle chain being missing again. So he went inside and informed the matter to his son namely P.W. 1, who came out and started shouting. Again on the fateful day i.e. on 25-11-89 when the deceased came out of his house at about 6.30 a.m. or 7.00 a.m. he found the lock along with the cycle chain being missing again. So he went inside and informed the matter to his son namely P.W. 1, who came out and started shouting. The accused on hearing this came out and questioned P.W. 1 as to why and how he can be going shouting like this, whereupon a wordy quarrel arose and immediately the accused who had come there of whom A-1 to A-3 who were armed with Casuarina Sticks, attacked P.W.1 on his legs and ankle with sticks. A-4 also attacked him with the knife. At that juncture, hearing the commotion and noise, the deceased P.W. 3 and P.W. 4 came out of the house and the deceased tried to save his son and at that time it is stated that A-4 gave a blow with the knife on the head of the deceased who sustained an injury on the head and immediately fell down. Since the prosecution witnesses raised a hue and cry, the accused took to their heels. Then the injured was taken to the Chidambaram Government Hospital in an autorickshaw. This in brief is the fact spoken to by P.W. 1, P.W. 3 and P.W. 4. 8. Mr. K.V. Sridharan the learned counsel appearing for the appellants would seriously argue that all the three eye-witnesses no doubt of whom P.W. 1 has sustained an injury and P.W. 3 and P.W. 4, the wife and mother of P.W. 1 are natural witnesses and their evidence has to be eschewed. We cannot subscribe to this view of the learned counsel especially in discarding the evidence of these witnesses solely on the ground that they were close relations of the deceased. Supreme Court has time and again cautioned the Courts to view the evidence of such witnesses with care and caution and not to discard their evidence because of their closeness to the deceased. Supreme Court has time and again cautioned the Courts to view the evidence of such witnesses with care and caution and not to discard their evidence because of their closeness to the deceased. Therefore, in our view the prosecution has clearly established that the prosecution party had put up a lock in the adjoining pathway which exclusively belonged to them and that two days prior to the occurrence, there was a quarrel with regard to the missing of the lock latched in the gate between them; that again on the fateful day in the early morning the lock along with the cycle chain was missing and hence they had shouted at the accused. This portion of the occurrence has not been seriously challenged and consequently we hold that the origin to the incident has been well established. 9. The next contention of the learned counsel is that no independent witnesses have been examined and according to him one Kumaran, Ramalingam and Sundaramoorthy was also present at the scene of occurrence and none of them have been examined. But on a reading of P.W. 1's evidence, the prosecution has clearly established that these two persons who admittedly came after the entire occurrence was over and on hearing the nolse only they came to the spot and found the deceased to be lying with Blood stained injuries and thereafter they helped him to be taken to the hospital. Therefore, in our opinion unless there is positive evidence that other witnesses also have been examined, one cannot criticise the prosecution for not having examined any independent witnesses. The prosecution can do so only when it has been admitted, or on the face of it appears to have been witnessed by other persons. In the absence of any such evidence, we cannot hold that independent witnesses should have necessarily been examined. 10. As far as the occurrence proper is concerned, we see that A-1 to A-3 were armed only with casuarina sticks and it is only after the wordy quarrel they had attacked the deceased on the left knee, right knee and right ankle which apparently goes to show that the accused had no intention to do any serious crime, much less with the avowed object of threatening them to stop the prosecution party from accusing them henceforth. It is only at that juncture the deceased came out from his house and intervened whereupon A-4 who was armed with the knife gave a single blow on the head, which unfortunately proved to be fatal when the deceased in this case died after 35 days of the occurrence. Therefore in our opinion, the prosecution has clearly established their case that there was an incident in the early hours of 25-11-89 in front of P.W. 1's house pertaining to the subject of the lock missing from the gate put up by them and when the same was questioned by P.W. 1 accusing the appellants, enraged over the same all the accused repelled to it which had resulted in the causing of simple injuries and had ended in the fatal blow given by A-4 on the head of the deceased who died later on 30-12-89. 11. Having come to such a conclusion that the prosecution had established the case as such; the question that now arises for consideration is as to what offence the appellants have actually committed. A-1 to A-3 have been convicted for an offence under Section 324 I.P.C. for having caused injuries on P.W. 1 and sentenced to pay a fine of Rs. 500/- and consequently there is no difficulty in confirming the conviction and sentence as the prosecution has proved against them for having attacked P.W. 1, including A-4 in respect of an offence under Section 324 IP.C. 12. Now coming to the aspect of A-4 who has been convicted for an offence under Section 302 I.P.C., we see that the deceased was not attacked in the first instance but it was P.W. 1 who shouted at the accused and only on hearing these shouts the accused four in number came out and retorted to the same, during which time A-4 is said to have given a blow on the head of the deceased who had intervened at the time of the wordy quarrel. The occurrence was said to have taken place on 25-11-89 and he was immediately taken to the Government Hospital Chidambaram and from there he was referred to Cuddalore Government Hospital. Here again, it is pertinent to note that the prosecution has failed to establish as to when the deceased, who was then injured was admitted in Cuddalore Hospital and why he has been taken to Government Hospital Madras. Here again, it is pertinent to note that the prosecution has failed to establish as to when the deceased, who was then injured was admitted in Cuddalore Hospital and why he has been taken to Government Hospital Madras. But the fact remains that the deceased died on 30-12-89 at about 1.00 p.m. after a lapse of 35 days from the incident. So, the prosecution has not com forward with any explanation, or with any materials as to what had happened during the interregnum period, more specifically with regard to the condition of the patient and the treatment to that effect. P.W. 8, the Doctor who had conducted the autopsy has stated that the deceased would have died because of the effect of head injury sustained by him. As to what he means by the effect of the head injuries has also not been made clear. It is pertinent to note that the prosecution has also not marked the case sheet which belonged to the deceased when he was in the hospital for over a month, nor the Doctors who had treated him after 26-11-89 had been examined. 13. In the above said circumstances, the learned counsel would place reliance on an unreported judgment rendered by our High Court in C. A. No. 613 of 1993 dated 5-9-2001, wherein their Lordships have held that it is not enough for the Doctor to merely say that the deceased died on account of the injuries sustained on the head. It is the duty of the doctor to establish that the complications noticed by the doctor on the dead body were on account of the injuries. In the present case, the complication has not been described at all by the Doctors and consequently the learned counsel would persuade us to hold that the accused would at best be liable to be convicted only for an offence under Section 326 I.P.C. and not under Section 302 I.P.C. We consider that there is considerable force in the argument of the learned counsel and we are inclined to accept solely because of the failure on the part of the prosecution to show as to what had transpired from 25-11-89 to 30-12-89 and the nature of treatment and whether there were any complications and other intervening circumstances that would have aggravated or caused the death. The non-examination of any of the doctors who had treated the patient and in the absence of the evidence relating to the same, we are not in a position to conclude that A-4 is liable to be convicted for an offence under Section 302 I.P.C. but would come only under Section 326 I.P.C. and we are inclined to modify the conviction from one under Section 302 I.P.C. to one under Section 326 I.P.C. and sentence him to undergo rigorous imprisonment for five years. 14. We have heard Mr. D. Stephen, the learned counsel appearing for the petitioner in Crl. R. C. No. 737 of 1995 and as already narrated by us, the said revision has been filed by P.W. 1 against the acquittal of three accused for offence under Section 302 I.P.C. and with another ground that they have been let off with the fine of Rs. 500/- and hence persuaded us to interfere with the said acquittal and in the alternative to enhance the punishment awarded to them under Section 324 from Rs. 500/- to six months rigorous imprisonment in the case of A-4. 15. As we have already discussed above in detail the evidence of the prosecution witnesses and in view of the fact that there is absolutely no common intention to cause the death of Muthukrishnan in so far as A-1 to A-3 is concerned; that they had attacked only P.W. 1 causing simple injuries on his legs and considering the fact that this being a revision against acquittal, where the scope of interference is very limited as has been time and again warned by the Supreme Court that the interference in a revision against acquittal by a private party should not be made unless there is a grave miscarriage of justice or material evidence has been overlooked. On going through the evidence and on record, we find that there is no such infirmity in the judgment of the Court below. On going through the evidence and on record, we find that there is no such infirmity in the judgment of the Court below. As far as the sentence is concerned, these three persons have no doubt been let off only with the fine, solely because they were armed with the casuarina sticks, whereas A-4 was armed with the knife and consequently we hold that there is no need to enhance the sentence imposed on A-1 to A-3 in relation to the sentence awarded to them by the trial Judge for an offence under Section 324 I.P.C. and accordingly this revision is dismissed. 16. In the result, C. A. No. 377 of 1994 preferred by A-1 to A-4 is partly allowed and Crl. R. C. No. 737 of 1995 is dismissed. Order accordingly.