C.Nagappan, J: The appellants five in number were accused Nos.1 to 5 respectively in Sessions Case No.31 of 1991 on the file of Sessions Judge, Nagapattinam and hereinafter they will be referred to as A-1 to A-5 respectively for the sake of convenience. 2. Under charge No.1, accused Nos.4 and 5 were charged under Sec.147 of I.P.C. for the offence of rioting and the learned Sessions Judge convicted and sentenced each of them to undergo six months rigorous imprisonment. Under charge No.2, accused Nos.1 to 3 were charged under Sec.148 of I.P.C. for the offence of rioting armed with deadly weapon and the learned Sessions Judge convicted and sentenced each of them to undergo one year rigorous imprisonment. Under charge No.3, all the accused were charged under Sec.342 of I.P.C. for the offence of wrongful confinement of Arjunan and the learned Sessions Judge acquitted all the accused of the charge. Under charge No.4, all the accused were charged under Sec.302 read with Sec.34 of I.P.C. for the offence of causing the death of Arjunan in furtherance of their common intention and the learned Sessions Judge convicted and sentenced each of them to undergo imprisonment for life. Under charge No.5, accused No.4 was charged under Sec.325 of I.P.C. for the offence of voluntarily causing grievous hurt to P.W.1 Rani and the learned Sessions Judge convicted and sentenced him to undergo two years rigorous imprisonment. Under charge No.6, accused No.5 was charged under Sec.325 of I.P.C. for the offence of voluntarily causing grievous hurt to P.W.2 Dhanam and the learned Sessions Judge convicted and sentenced him to undergo two years rigorous imprisonment. Under charge No.7, the accused Nos.1 to 3 and 5 were charged under Sec.325 read with Sec.149 of I.P.C. for the offence of sharing the common object with accused No.4 in causing grievous hurt to P.W.1 Rani and the learned Sessions Judge convicted and sentenced each of them to undergo two years rigorous imprisonment. Under charge No.8, the accused Nos.1 to 4 were charged under Sec.325 read with Sec.149 of I.P.C. for the offence of sharing the common object with accused No.5 in causing grievous hurt to P.W.2 Dhanam and the learned Sessions Judge convicted and sentenced them to undergo two years rigorous imprisonment. Under charge No.8, the accused Nos.1 to 4 were charged under Sec.325 read with Sec.149 of I.P.C. for the offence of sharing the common object with accused No.5 in causing grievous hurt to P.W.2 Dhanam and the learned Sessions Judge convicted and sentenced them to undergo two years rigorous imprisonment. Under charge Nos.9 and 10, the accused Nos.4 and 5 were both charged for the offence of assaulting P.W.3 and Kaliyamoorthy respectively and the learned Sessions Judge acquitted them under those charges. 3. To prove its case, the prosecution has examined P.Ws.1 to 12 and marked Exs.P-1 to P-24 as well as M.Os.1 to 13. 4. The case of the prosecution as could be discerned from oral and documentary evidence can be briefly summarised as follows. P.W.1 Rani is the wife of deceased Arjunan. P.W.2 Dhanam is the mother of P.W.1 and sister of the deceased. P.W.3 Natarajan is the son of P.W.2. Accused No.1 Kittu alias Pannerselvam is friend of accused No.2 Kumar alias Udayakumar. Accused No.3 Sonai Muthu, accused No.4 Vasudevan and accused No.5 Rajendran are relatives of accused No.1. All the accused belong to Pattavarthi village. The deceased Arjunan and P.Ws.1 to 3 belong to Thalaignayar village. The distance between the two villages is one mile. 5. The deceased Arjunan’s sister Tmt.Guna was a widow and she was living with him in Thalaignayar and the uncle of accused No.1, namely, Thangavel, pulled the hand of Tmt.Guna and Arjunan chopped off the hand of Thangavel. Because of that, accused No.1 and his relatives destroyed the dwelling house of Arjunan and after that Arjunan, along with his family, moved to P.W.1’s parents house and was living there for 7 or 8 years. Arjunan sold his damaged house to the brother-in-law of the sister of P.W.2, namely, Thangaraj and when Thangaraj attempted to cut the trees in the backside of the house, the present accused No.1 and his associates murdered Thangaraj. Arjunan was helping the family of Thangaraj. Accused No.1 herein was sentenced to life imprisonment for the murder of Thangaraj and on appeal, the sentence was reduced in the High Court and after serving sentence, he came out. 6. Arjunan purchased the vacant site adjacent to the house of accused No.2 and constructed a house there and was living in it. Accused No.1 herein was sentenced to life imprisonment for the murder of Thangaraj and on appeal, the sentence was reduced in the High Court and after serving sentence, he came out. 6. Arjunan purchased the vacant site adjacent to the house of accused No.2 and constructed a house there and was living in it. 10 days before the occurrence, Arjunan fenced the border in between his house and the house of accused No.2. Accused No.2 objected to it and quarrelled with Arjunan and during the quarrel, Accused No.2 proclaimed that he would do away Arjunan with the help of Thangaraj. Five days before the occurrence, Arjunan was talking with P.W.1 and P.W.3 in his house and, at that time, accused Nos.1 to 5 came there and challenged Arjunan and Arjunan replied that he would not talk and fight with them on account of his wife and children. Accused No.1 proclaimed that he would finish off Arjunan within a period of eight days and all the accused left the place. Arjunan informed the same to the village Head Panchayatdar and he assured to take steps to warn the accused. 7. On 10.7.1990, Arjunan along with P.Ws.1 to 3 went to the cinema theatre in Mannipallam village and. after the show, they were returning home. Arjunan was going in front and the others were following him. When they were passing through the entrance of the Sugar factory in Thalaignayar under the electric light, accused Nos.1 and 2 holding aruval in their hands, accused No.3 holding velkambu in his hand and accused Nos.4 and 5 holding sticks in their hands came there and accused No.1 cut on the head of Arjunan with aruval by saying and accused No.2 cut on the head and shoulder of Arjunan with aruval and accused No.3 cut Arjunan on the thigh and back with velkambu and accused Nos.4 and 5 indiscriminately beat with sticks on the body of Arjunan. On seeing this, P.W.1 ran near and the accused No.4 beat P.W.1 with stick on the right wrist and when P. W.2 Dhanam came near, accused No.5 beat her on both hands and left leg with stick. Accused Nos.4 and 5 pushed away P.W.3 and Kaliyamoorthy with their sticks and all the accused ran away with weapons. On seeing this, P.W.1 ran near and the accused No.4 beat P.W.1 with stick on the right wrist and when P. W.2 Dhanam came near, accused No.5 beat her on both hands and left leg with stick. Accused Nos.4 and 5 pushed away P.W.3 and Kaliyamoorthy with their sticks and all the accused ran away with weapons. P.W.3 went to Vaideeswarankoil, hired an auto and came back to the occurrence place at 1.00 a.m. on 11.7.1990, He directed Kaliyamoorthy to get money from the house and come to Government Hospital at Mayiladuthurai and he took Arjunan in the auto along with P.Ws.1 and 2 to the Government Hospital at Mayiladuthurai. 8. At 2.20 a.m., P.W.7 Dr.Vasantha Jeyaraman examined Arjunan and declared him dead. She sent Ex.P-19 Death Intimation to Police Station at 2.40 a.m. P.W.7 examined P.W.2 Dhanam at 2.45 a.m. and found the following injuries on her. “(1) Diffused swelling left hand. Fracture proximal phalanx of middle finger 4 cm x 4 cm. (2) A diffused right hand 4 cm x 4 cm over dorsum with fracture proximal phalanx middle finger. (3) Diffused swelling left ankle joint 10 cm x 8 cm fracture medial malleleous.” She admitted P.W.2 Dhanam as inpatient and X-rays were taken and it revealed fractures in both the hands and left leg. P.W.7 issued Ex.P-11 Accident Register Extract. P.W.7 Dr.Vasantha Jeyaram also examined P.W.1 Rani at 3.00 a.m. on 11.7.1990 and found a diffused contusion right hand dorsal 5 cm x 5 cm fracture proximal phalanx of middle (N.C.) finger right hand, and she admitted P.W.1 in the family surgery ward. X-rays were taken and it was found that there was fracture in the right hand fingers. She issued Ex.P-10 Accident Register Extract. 9. P.W.11 Sub-Inspector, on receipt of intimation from the Hospital, went to the Government Hospital, Mayiladuthurai at 4.00 a.m. on 11.7.1990 and recorded Ex.P-1 statement given by P.W.1 and returned to the Police Station at 5.30 a.m. and registered a case in Crime No.316 of 1990 under Secs.147, 148, 341, 323, 324, 326 and 302 of I.P.C. and prepared Ex.P-18 first information report and sent the express report to the Court and to higher officers. He proceeded to the occurrence place. 10. P.W.12 Inspector, on receipt of information, reached the occurrence place at 6.10 a.m. and obtained the first information report from P.W.11 and took up the investigation. He proceeded to the occurrence place. 10. P.W.12 Inspector, on receipt of information, reached the occurrence place at 6.10 a.m. and obtained the first information report from P.W.11 and took up the investigation. He prepared Ex.P-2 observation mahazar in the presence of P.W.4 Ramu and another. He also prepared Ex.P-20 rough sketch. At 7.00 a.m., he seized M.Os.5 and 6 from the occurrence place under Ex.P-3 mahazar attested by P.W.4 and another. He took M.O.13 series photographs of the occurrence place. He proceeded to Government Hospital, Mayiladuthurai and conducted inquest on the body of Arjunan between 7.30 a.m. to 9.30 a.m. and prepared Ex.P-21 inquest report and he examined P.Ws.1 to 3 and another and recorded their statements. He seized M.Os.1, 2, 4 and 11 under Form 95 from P.Ws.1 to 3 and another. He sent the body for post-mortem with Ex.P-12 requisition through P.W.9 Constable. 11. P.W.8 Dr.Santhanam conducted post-mortem on the body of Arjunan at 10.30 a.m. on 11.7.1990 and found the following injuries. "External Injuries: (1) An incised injury over right frontal region of the scalp horizontal 3 cm x 5 mm exposing bone edges ecchymosed hairs cut in the line of injury antemortem. (2) An incised injury 2 cm long/5 mm and 2 mm deep over the right parito - occipital region of scalp. Edges ecchymosed hairs cut in the line of injury antemortem. (3) A contusion 2 cm diameter over the right side of forehead 2 cm above eye brow. On dissection contains dark red blood with clots. (4) A contusion over the upper part of right deltoid region 5 cm diameter glistening stain raised 1 cm from the surrounding surface. On dissection contains dark red blood with clots. (5) A contusion 6 cm diameter raised 1 cm above surrounding surface over the right scapular region (glistening) on the back. On dissection contains dark red blood with clots. (6) A contusion over the middle of right deltoid region 4 cm diameter raised 1 cm from the surface. On dissection contain dark red blood with clots. (7) A contusion over the; middle and front aspect of right arm 4 cm x 1 cm glistening. On dissection contain dark red blood clotted found. (8) A spindle shaped incised wound 2 cm x 5 mm x 5 mm over the back of right arm 4 cm above right elbow. Edges ecchymosed. (7) A contusion over the; middle and front aspect of right arm 4 cm x 1 cm glistening. On dissection contain dark red blood clotted found. (8) A spindle shaped incised wound 2 cm x 5 mm x 5 mm over the back of right arm 4 cm above right elbow. Edges ecchymosed. (9) A spindle shaped incised wound 1 cm x 5 mm x 5 mm over the back of right arm just above right elbow. (10) A contusion 3 cm dia meter over the right elbow region. (11) A lacerated injury 4 cm below right elbow over the back of right fore-arm 3 cm x 2 cm. edges ecchymosed through which fractured right radius bone is protruding out. (12) A contusion 4 cm x 1 cm over the middle of right fore-arm front aspect. (13) A contusion 3 cm x 1 cm over the back of right fore-arm just above right wrist joint. (14) An abrasion antemortem 3 cm x 1 cm over upper and outer part of left arm. (15) An abrasion 2 cm x 1 cm and 2 cm below injury No.14. (16) An abrasion 3 cm x 1 cm Antemortem and 1 cm below injury No.15. (17) A contusion 4 cm x 1cm and 1 cm above left elbow joint over the back of left arm. (18) A contusion over the back of left forearm 5 cm below left elbow joint 5 cm diameter and glistening. On dissection fracture of both fore-arm bones present. (19) A spindle shaped stab injury 1 cm x 5 cm x 5 cm edges ecchymosed over the middle of left fore-arm front. (20) An incised wound 3 cm x 1 cm exposing the bones over left knee joint. Edges ecchymosed. (21) An incised injury 2 cm x 5 cm x 5 cm and 5 cm below left knee joint. Edges ecchymosed. (22) An incised wound 2 cm x 5 cm and 4 cm above left ankle joint over left gluis. Edges ecchymosed. (23) A spindle shaped injury 2 cm x 1 cm exposing bone over the inner aspect of left ankle joint edges ecchymosed. Internal Examinations: Skull and brain: A lineal fracture over the right parietal bone 4 cm long. Brain and coverings: Sub-dural Haemotoma over the right parietal lobe of brain. 3 cm diameter". Edges ecchymosed. (23) A spindle shaped injury 2 cm x 1 cm exposing bone over the inner aspect of left ankle joint edges ecchymosed. Internal Examinations: Skull and brain: A lineal fracture over the right parietal bone 4 cm long. Brain and coverings: Sub-dural Haemotoma over the right parietal lobe of brain. 3 cm diameter". P.W.7 Post-mortem doctor issued Ex.P-13 postmortem certificate and has opined that the deceased would appear to have died of shock and haemorrhage due to sustained injuries about 9 to 12 hours prior to post-mortem. 12. P.W.12 Inspector examined P.W.4, P.W.9 and some other witnesses on 11.7.1990 and recorded their statements. He arrested the accused No.1 on 12.7.1990 at 12.00 noon in the Manalmedu bus-stand and examined him in the presence of P.W.5 and P.W.6 and recorded the statement given by accused No.1 and the admissible portion of the same is Ex.P-22. Accused No.1 took the police party to the sugar-cane field on the backside of Thalaignayar sugar factory and took and produced M.O.3 vetaruval from the bush and P.W.12 recovered it under Ex.P-23 mahazar at 1.30 p.m. in the presence of P.W.5 and P.W.6. On 12.7.1990, at about 3.30 p.m., he arrested accused Nos.2 to 5 in Thiruvalaputhur bus-stop and seized M.O.12 shirt from accused No.3 under Ex.P-24 mahazar in the presence of P.W.5 and P.W.6. He sent all the accused for Judicial remand on the same day. He examined P.W.8 and some other witnesses on 12.7.1990 and recorded their statements. He gave Ex.P.14 requisition to the Court to send the material objectives for chemical examination. P.W.10 Head Clerk of Judicial Magistrate Court sent the material objects for Chemical Examination through Ex.P-15 letter of the Court. Ex.P-16 Chemical Examiner Report and Ex.P-17 Serologist Report were received in the Court. P.W.12 Inspector examined P.Ws.5 to 7 on 6.12.1990 and recorded their statements. He completed the investigation and filed the final report on 15.12.1990. 13. The accused were questioned under Sec.313 of Crl.P.C. and they denied complicity and filed separate written statements. 14. The learned Sessions Judge convicted and sentenced the accused under the charges as stated earlier and all the accused have preferred the present appeal. 15. When the appeal is pending, accused No.1 died on 28.12.1998 and the appeal with regard to him abates. 16. 14. The learned Sessions Judge convicted and sentenced the accused under the charges as stated earlier and all the accused have preferred the present appeal. 15. When the appeal is pending, accused No.1 died on 28.12.1998 and the appeal with regard to him abates. 16. The case of the prosecution is that all the five accused, in furtherance of their common intention attacked and caused the death of Arjunan. To prove the occurrence, the prosecution has examined P.Ws.1 to 3. P.W.1 Rani is the wife of the deceased and P.W.2 Dhanam is the elder sister of the deceased and the mother of P.W.1. P.W.3 Natarajan is the son of P.W.2. P.W.1 and P.W.2 are injured in the same occurrence. According to P.Ws.1 to 3, on the day of occurrence, they and the deceased Arjunan went to the cinema theatre in Mannipallam and after the end of the show, they were returning home and in the main road Arjunan was going in front and others were following him and when they were passing through the entrance of sugar factory and near the tea shop of Ganesh Chettiar at about 10.15 p.m., accused Nos.1 and 2 holding aruval in their hands and accused No.3 holding velkambu in his hand came from the side of the road to the main road and accused Nos 4 and 5 holding sticks in their hands came from the tamarind tree adjoining the wall of sugar factory and accused No.1 cut on the head of Arjunan with M.O.3 aruval and accused No.2 cut on the head and shoulder of Arjunan with aruval and accused No.3 cut Arjunan on the thigh and back with velkambu and accused Nos.4 and 5 indiscriminately beat with sticks on his body. They have further stated that on seeing this, P.W.1 ran near and accused No.4 beat P.W.1 on the right wrist with stick and when P.W.2 Dhanam cane near, accused No.5 beat her on both hands and left leg with stick and all the accused ran away with weapons. From the ocular testimony of the above witnesses, it emerges that the occurrence had happened at about 10.15 p.m. in the main road near the entrance of Thalaignayar sugar factory and there was electric light near the scene of occurrence. Ex.P-20 is the rough sketch prepared by the Investigation Officer P.W.12 and in it, the electric pole with tube light is shown. 17. Ex.P-20 is the rough sketch prepared by the Investigation Officer P.W.12 and in it, the electric pole with tube light is shown. 17. The learned senior counsel appearing for second appellant/ accused No.2 contends that P.Ws.1 to 3 are interested witnesses and the prosecution has not examined any independent witness to prove the occurrence. It is no doubt true that P.Ws.1 to 3 are close relatives of the deceased and, at the same time, it is to be borne in mind that P.Ws.1 and 2 were also attacked by some of the accused in the occurrence resulting in grievous injuries to them. In fact, during her cross-examination, P.W.1 has categorically stated that the people, who were returning home after the show, were going in front of them and on seeing the occurrence, they all ran away from the scene. It is quite natural that in the night time when accused armed with deadly weapons attack the assailant, the people near would become panic and run for their safety. In fact, the Investigation Officer P.W.12 has clearly stated that he enquired the owners of tea shop, hotel, petty shop and provision shop near the occurrence place and they claimed no knowledge about the occurrence. In those circumstances, the non-examination of independent witnesses does not in any way affect the prosecution case. 18. The learned senior counsel further contended that there was delay in preferring complaint about the occurrence and hence Ex.P-1 complaint cannot be believed. According to P.Ws.1 to 3, the occurrence happened at bout 10.15 p.m. and due to non-availability of autos or cars in Thalaignayar village, P.W.3 went to Vaideeswarankoil, which is six miles away from the occurrence place and managed to get an auto and reached back the occurrence place around 12.00 mid-night and all the three of them took Arjunan in the auto to Mayiladuthurai Government Hospital, which is at distance of nine miles from the occurrence place and reached the hospital around 2.15 a.m. where Arjunan was declared dead. P.W.7 Dr.Vasantha Jeyaraman has confirmed that she examined Arjunan only at 2.20 a.m. in the Mayiladuthurai Government Hospital. A contention was raised that on their way to Mayiladuthurai Government Hospital, P.Ws.1 to 3 had crossed Manalmedu Government Hospital and they could have shown Arjunan in that hospital. P.W.7 Dr.Vasantha Jeyaraman has confirmed that she examined Arjunan only at 2.20 a.m. in the Mayiladuthurai Government Hospital. A contention was raised that on their way to Mayiladuthurai Government Hospital, P.Ws.1 to 3 had crossed Manalmedu Government Hospital and they could have shown Arjunan in that hospital. According to P.W.3, there is no hospital in Thalaignayar village and only in the nearby Elanthope village there is a hospital and even that hospital would be opened only 10.00 a.m. in the morning and the Doctor will go away from the hospital in the evening. The occurrence had happened in the night time and only in headquarters hospital there would be facility to treat grievously injured person and in those circumstances, P.Ws.1 to 3 had taken Arjunan to the Mayiladuthurai Government Hospital after the occurrence Yet another contention was raised that P.Ws.1 to 3, while coming to Mayiladuthurai Government Hospital taking Arjunan in the auto, they had crossed Manalmedu Police Station and they did not prefer any complaint at that time. This contention is devoid of merits. P.Ws.1 to 3 in anxiety to save the life of grievously injured Arjunan had taken him in an auto to the Headquarters Hospital and in such circumstance, it cannot be expected that they would first take recourse of law without saving the life. 19. P.W.7 Dr.Vasantha Jeyaraman had sent Ex.P-19 intimation to Mayiladuthurai Police Station and in it she has stated that the body of Arjunan was brought with multiple cut injuries. P.W.11 Sub-Inspector of Manalmedu Police Station, which is the jurisdiction Police station of the occurrence place had been informed in his house at 3.15 a.m. by a constable attached to Manalmedu Police Station about the death intimation received from Mayiladuthurai Government Hospital and he immediately proceeded and reached Mayiladuthurai Government Hospital at 4,00 a.m. He has further stated that he recorded Ex.P-1 statement give by P.W.1 Rani, who was an inpatient in the hospital and obtained the signature of the duty doctor P.W.7 in it and returned back to Manalmedu Police Station and at 5.30 a.m. he registered a case in Crime No.316 of 1990 under various Sections of I.P.C. and prepared Ex.P-18 First Information Report and immediately sent it to the Court and higher officers. The first information report had reached the Court, which is at a distance of 15 kilometres, at 9.30 a.m. in the morning. The first information report had reached the Court, which is at a distance of 15 kilometres, at 9.30 a.m. in the morning. Further, P.W.12 Inspector, on getting the information, had reached the occurrence place at 6.10 a.m. and obtained the first information report from P.W.11 Sub-Inspector there and had taken up investigation and prepared observation mahazar and rough sketch and seized some of the material objects from the occurrence place and had gone to Government Hospital, Mayiladuthurai and had conducted inquest from 7.30 a.m. to 9.30 a.m. In these circumstances, the delay in preferring complaint about the occurrence is properly explained and the investigation had been commenced at the earliest point in time. 20. Another contention was raised that Ex.P-1 complaint is a lengthy statement running to three pages and in it the complainant had narrated right from the motive down to the occurrence and hence it is artificial. It must be borne in mind that after the occurrence Arjunan was declared dead in the hospital and got herself admitted for her injuries in the hospital and then she had given the statement at 4.00 a.m. to P.W.11. In such circumstance, it is but natural for the wife to narrate the entire happening for taking effective action. The version of P.Ws.1 to 3 is natural and convincing and nothing is elicited in their cross-examination to discredit their testimony. Accepting their evidence, it becomes clear that the accused had attacked Arjunan with deadly weapons during the occurrence. 21. Arjunan died of homicidal violence is proved by the evidence of P.W.8, who conducted autopsy on the body of Arjunan. P.W.8 Dr.Santhanam had found 23 external injuries which consist of 10 cut injuries, 8 contusions and the remaining abrasions. He had stated that the cut injuries found on the body could have been caused by cutting with vetaruval and velkambu and the contusions could have been caused by beating with sticks and those injuries would cause death. He has also opined in his Ex.P-13 post-mortem certificate that the deceased would appear to have died of shock and haemorrhage due to sustained injuries. Hence, it is established that Arjunan died as a result of the injuries caused in the occurrence. 22. He has also opined in his Ex.P-13 post-mortem certificate that the deceased would appear to have died of shock and haemorrhage due to sustained injuries. Hence, it is established that Arjunan died as a result of the injuries caused in the occurrence. 22. The learned counsel for the appellants contend that even if the prosecution case is accepted into, the offence would not come with Sec.302 read with Sec.34 of I.P.C. as no common intention was made out for all the accused to commit the murder of Arjunan. P.Ws.1 to 3 have spoken about the enmity of accused No.1 with the deceased for a long number of years even before the occurrence. In so far as the present occurrence is concerned, the cause appears to be a wordy dual of the deceased with his neighbour, namely, accused No.2, over fencing the boundary in between their houses. Accused No.2 is not related to accused No.1 and they are only friends. Accused Nos.3 to 5 are related to accused No.1. According to P.Ws.1 to 3, accused No.2 brought accused No.1 and accused Nos.3 to 5 to the house of the deceased five days before the occurrence and a wordy altercation took place and in which accused No.1 proclaimed to finish off the deceased and it ended in the occurrence. 23. During the occurrence, accused No.1 and accused No.2 cut on the head and shoulder of Arjunan with aruval and accused No.3 cut Arjunan with Velkambu on the left thigh and back and accused Nos.4 and 5 indiscriminately beat with sticks on the body of Arjunan. There is nothing to infer that all the accused had the common intention of murdering the deceased Arjunan, though from the evidence it is clear that all the five accused got together in order to give a good thrashing to deceased Arjunan. Further, the medical evidence is too vague to support the conviction under Sec.302 of I.P.C. Though 10 cut injuries were found on the deceased as spoken to by P.W.8 post-mortem doctor, it has not even been elicited in chief-examination as to which of those injuries are grievous or which of them are fatal or which of them are likely to cause death or which of them are sufficient in the ordinary course of nature to cause death. The prosecution has miserably failed to elicit positive answer from the doctor and this omission is vital. The prosecution has miserably failed to elicit positive answer from the doctor and this omission is vital. In short, we are unable to gather from the medical evidence as to which are the fatal injuries that have resulted in the death of Arjunan. The learned counsel for the appellants relied on the decision of the Supreme Court in Rama Meru and another v. State of Gujarat, 1992 Crl.L.J. 1265 and a Division Bench decision of this Court in Rakkan alias Rakka Perumal and others, 1985 M.L.J. (Crl.) 185, in this regard. In the cases in which the above decisions arose, the Supreme Court and this Court, on the facts and the medical evidence, came to the conclusion that it cannot be definitely held that the appellants had been harbouring common intention to commit murder of the deceased, but the accused merely had common intention of causing grievous hurt to the deceased and they were found guilty for the offence under Sec.326 with Sec.34 of I.P.C. 24. In the present case also the evidence is not conclusive as to whether the common intention was to commit murder or to cause grievous, injuries and we are satisfied that the present case is one of those border line cases where one may with equal justification infer that the common intention was to inflict grievous injuries and not murder. Hence, the conviction of all the accused under Sec.302 read with Sec.34 of I.P.C. cannot be sustained. At the same time, they are liable to be convicted under Sec.326 read with Sec.34 of I.P.C. It is to be borne in mind that at the time of occurrence, the accused lay in wait armed with deadly weapons and had attacked Arjunan. 25. In so far as the other charges relating to the offence of causing grievous hurt to P.Ws.1 and 2 in the same occurrence are concerned, the evidence of P.Ws.1 to 3 is over-whelming supported by medical evidence and the convictions relating to those charges are not seriously challenged before us. The learned Sessions Judge was justified in convicting and sentencing the accused for those charges and we see no reason to interfere with the said findings and conclusions. 26. The learned Sessions Judge was justified in convicting and sentencing the accused for those charges and we see no reason to interfere with the said findings and conclusions. 26. In the result, (i) the appeal relating to first appellant/ accused No.1 abates; (ii) we set aside the conviction and sentence imposed on appellants 2 to 5/ accused Nos.2 to 5 under Sec.302 read with Sec.34 of I.P.C. and instead, we convict them under Sec.326 read with Sec.34 of I.P.C. and sentence each of them to undergo rigorous imprisonment for a period of seven years; and (iii) the conviction and sentence imposed on appellants 2 to 5/ accused Nos.2 to 5 for other charges are confirmed. We also direct that the sentence shall run concurrently. The appeal is allowed to the extent indicated above. 27. It is reported that the appellants 2 to 5 are on bail. The Sessions Judge will take steps to secure and commit them to jail to undergo the remaining period of sentence.