Judgment :- Appellant is the First Accused in S.C.No.95 of 1997 on the file of Principal Sessions Court, Nagappattinam. By the Judgment dated 06.02.1998, learned Principal Sessions Judge has convicted the Appellant / First Accused under Sec.304(II) I.P.C and sentenced him to undergo Rigorous Imprisonment for a period of Seven years. A-2-Vetriselvan, A-3-Yogesh were acquitted. 2. P.W.1-Sanjathul Rahim, P.W.2-Mubarak Husen and P.W.5-Vijaya Prabakaran were studying at V.S.Higher Secondary School, Tiruvarur in 12th Standard. Santhana Krishnan, Father of P.W.7-Indhumathi was taking Tuition for the students. P.Ws.1,2 and Deceased-Sheikh Dawood were also attending the Tuition in the house of Santhana Krishnan. 3. P.W.7-Indhumathi is the Daughter of Santhana Krishnan. One Anand is his Son. A-1 is the Friend of said Anand. A-1 was working in the house of Santhanakrishnan. It is alleged that A-1 had developed one side love towards Indhumathi. But, P.W.7-Indhumathi is said to have developed liking towards the Deceased-Sheikh Dawood. Because of the same, the Accused and his Friends have developed enmity towards Deceased-Sheikh Dawood. 4. On 28.11.1995 – 08.50 p.m., P.Ws.1 and 2 went in Kinetic Honda Motor Cycle, informing Sheikh Dawood that P.W.2's Grandfather is not doing well. In the Motor Cycle, Sheikh Dawood and P.W.2 proceeded. P.W.1 followed them in a cycle. In Thiruvarur Mela Veethi and North Veethi Junction Point, A-1 approached Sheikh Dawood and wanted to have a personal talk and took him aside. P.Ws.1 and 2, who were accompanied Sheikh Dawood had seen the First Accused taking Sheikh Dawood aside with him. Kamalalayakarai Thiyagaraja Swamy Mela Gopura Vasal is the Scene of occurrence. P.W.3-Thiyagarajan is the Rickshaw pullar, who has kept his Rickshaw in the nearby Gandhi Rickshaw Stand. He saw the First Accused and Deceased entangled in a scuffle. A-1 with M.O.7-Knife inflicted cut injury on the Left Thigh of Sheikh Dawood. Again, he inflicted one cut injury in the Umbilicus region. Profusely bleeding, Deceased-Sheikh Dawood had fallen down. A-1 had run towards Western Side. P.Ws.1 and 2 had taken Deceased-Sheikh Dawood to Thiruvarur Government Hospital. 5. P.W.10-Dr. Karthikeyan had examined Sheikh Dawood at 09.30 p.m. He has noted Incised Wound Left Lower Thigh, below umbilicus Region and Abrasions in Right Lip and Right Lower Eye lid. Sheikh Dawood was admitted in the Hospital. Ex.P.10-Intimation was sent to the Police about the admission of Sheikh Dawood. 6. 5. P.W.10-Dr. Karthikeyan had examined Sheikh Dawood at 09.30 p.m. He has noted Incised Wound Left Lower Thigh, below umbilicus Region and Abrasions in Right Lip and Right Lower Eye lid. Sheikh Dawood was admitted in the Hospital. Ex.P.10-Intimation was sent to the Police about the admission of Sheikh Dawood. 6. Sheikh Dawood succumbed to injuries at 10.10 p.m. Immediately, Ex.P.11-Death Intimation was sent to the Police. P.W.12-Head Constable, Thiruvarur Police Station received Ex.P.11-Death Intimation and informed P.W.14-Inspector of Police. P.W.14 went to Thiruvarur Government Hospital. He has examined P.W.1 and recorded his Statement under Ex.P.1. On the basis of Ex.P.1, case was registered in Crime No.940/95 under Sec.302 I.P.C under Ex.P.21-F.I.R. 7. P.W.14 had taken up the Investigation. The scene of occurrence – near Kamalalayakarai Thiyagaraja Swamy Mela Gopura Vasal was inspected in the presence of P.W.9-Selvaraj and one Ramesh. Ex.P.6-Observation Mahazar and Ex.P.22-Rough Sketch were prepared on the scene of occurrence. M.O.1-Cycle, M.O.8-Lady's Cycle, M.O.9-Pair of Chapel, M.O.10-Blood stained mud and M.O.11-Sample Mud were seized under Ex.P.7-Mahazar from the scene of occurrence. P.W.14 examined the Witnesses in the presence of Panchayatars and held the Inquest in the Government Hospital, Thiruvarur. Ex.P.23 is the Inquest Report. After the Inquest, the body was sent to Autopsy. 8. Pursuant to requisition from the Inspector of Police, P.W.11-Dr.Thamilarasan has conducted the Autopsy on the body of the Deceased-Sheikh Dawood. He has noted an Incised Wound over the lower end of the latero posterior aspect of the Left Thigh and a Punctured wound below the Umbilicus Region. Opining that the Deceased died of shock and haemorrhage due to the injuries sustained, P.W.11 issued Ex.P.12-Post Mortem Certificate. 9. Pant and Shirt of P.W.2(M.Os.2 and 3) were seized under Ex.P.8-Mahazar. Same blood group of the Deceased i.e. B-Group was detected in the Shirt and Pant of P.W.2. 10. The Accused have surrendered themselves before the Court. On filing application before the Court, P.W.14 had taken A-1 to Police Custody. A-1 was examined in the presence of P.W.8-Village Administrative Officer and Village Assistant – Gopal. When being questioned, A-1 had voluntarily gave a Confession Statement, admitting his guilt. Ex.P.4- Admissible portion of the Confession Statement led to the recovery of M.O.7-Knife from in front of his House. Thereafter, A-1 was sent back to Judicial Custody. 11. The properties were sent for Chemical Analysis. When being questioned, A-1 had voluntarily gave a Confession Statement, admitting his guilt. Ex.P.4- Admissible portion of the Confession Statement led to the recovery of M.O.7-Knife from in front of his House. Thereafter, A-1 was sent back to Judicial Custody. 11. The properties were sent for Chemical Analysis. On completion of Investigation, Charge Sheet was filed against A-1, A-2 and A-3 under Sec.341,351, 302 and 302 r/w 34 I.P.C. 12. To establish the Charges against the Accused, in the Trial Court, Prosecution has examined P.Ws.1 to 14. Exs.P.1 to 24 were marked and M.Os.1 to 16 have been produced before the Court. The Accused were questioned under Sec.313 Crl.P.C about the incriminating evidence and circumstances against them. Denying all of them, the Accused had stated that a false case has been foisted against them. 13. In consideration of the evidence adduced, learned Principal Sessions Judge found that though P.Ws.1 and 2 have turned hostile, their evidence is clear to the effect that A-1 had taken Deceased – Sheikh Dawood and that Deceased was last seen alive together in the company of A-1. On the overt act of the First Accused, learned Sessions Judge placed much reliance upon the evidence of P.W.3 and recovery of Weapon – M.O.7 at the instance of A-1. A-1 was held responsible for causing fatal injuries to the Deceased Sheikh Dawood. Finding that the guilt of A-2 and A-3 was not established, they have been acquitted. Pointing out that the occurrence was without any pre-meditation and that the First Accused had no deliberate intention to cause the Murder, he was convicted under Sec.304(I) I.P.C. and sentenced to undergo Rigorous Imprisonment for a period of seven years. 14. Aggrieved over the findings and the verdict of conviction, Appellant / A-1 has preferred this Appeal. Evidence of P.W.3 is mainly attacked on the ground that his Identification is not strengthened by holding the Test Identification Parade and that his evidence cannot form basis for conviction. Learned counsel for the Appellant / First Accused has contended that the alleged recovery of M.O.7-Knife is of no great use to the Prosecution since the same was not identified as the Weapon of assault by any of the Eye Witnesses and under those circumstances, learned Sessions Judge grossly erred in taking the same as one of the circumstances. Learned counsel for the Appellant / First Accused has contended that the alleged recovery of M.O.7-Knife is of no great use to the Prosecution since the same was not identified as the Weapon of assault by any of the Eye Witnesses and under those circumstances, learned Sessions Judge grossly erred in taking the same as one of the circumstances. It is mainly contended that when P.Ws.1 and 2 have turned hostile, learned Sessions Judge erred in basing the Conviction on the sole testimony of P.W.3, which cannot be sustained especially in the absence of earlier Test Identification Parade. 15. Taking me through the evidence of the Witnesses, learned Government Advocate Mr. V.Jayaprakash Narayanan has submitted that P.W.3-Rickshaw Pullar is a natural and probable evidence and his independent version cannot be disbelieved. Pointing out recovery of M.O.7-Knife at the instance of the First Accused is the formidable circumstance against the First Accused, learned Government Advocate has submitted that the learned Sessions Judge has rightly found the First Accused guilty under Sec.304(I) I.P.C. Drawing the attention of the Court to the injuries caused, learned Government Advocate has further submitted that the sentence of Imprisonment of Seven years is quite reasonable warranting no interference. 16. In consideration of the evidence, Judgment of the Trial Court, submissions of both sides, the only point that arises for consideration is : Whether the conviction of the Appellant / First Accused under Sec.304(I) I.P.C and Sentence of Imprisonment suffers from any infirmity warranting interference? 17. P.W.7-Indhumathi, Daughter of Santhana Krishnan has denied her developing friendship with Deceased Sheikh Dawood. Quite naturally, P.W.7 being unmarried girl, perhaps, did not want to speak about her personal affairs in the Court. Though she has not stated about her friendship with Deceased-Sheikh Dawood, Ex.P.2-Letters produced by P.W.4 would speak about her friendship with the Deceased-Sheikh Dawood. P.W.4-Father of Deceased-Sheikh Dawood has produced the Letters addressed to his Son. Ex.P.2-Letters are not proved to be in the hand writing of P.W.7-Indhumathi. But, by a cursory reading of Ex.P.2-Letter refers to the Tuition surrounding and other surrounding of her Father, which is the strong circumstance evidencing that P.W.7 must have had friendship with Deceased-Sheikh Dawood. P.W.7 did not support the Prosecution case and has turned hostile. With the hostility of P.W.7, Prosecution was handicapped in establishing the motive. But, by a cursory reading of Ex.P.2-Letter refers to the Tuition surrounding and other surrounding of her Father, which is the strong circumstance evidencing that P.W.7 must have had friendship with Deceased-Sheikh Dawood. P.W.7 did not support the Prosecution case and has turned hostile. With the hostility of P.W.7, Prosecution was handicapped in establishing the motive. The fact that the Prosecution could not established the motive does not in any way undermine the Prosecution case. 18. On 28.11.1995, P.Ws.1 and 2 went to the house Santhana Krishnan in Kinetic Honda Motor Cycle. They informed Deceased-Sheikh Dawood that P.W.2's Grandfather is not doing well and is to be attended to. In the same Motorcycle, Sheikh Dawood and P.W.2 proceeded. P.W.1 followed them in the cycle. They were intercepted by the First Accused near Kamalalayakarai Thiyagaraja Swamy Mela Gopura Vasal. A-1 had taken aside Sheikh Dawood saying that he wanted to talk to him personally. P.Ws.1 and 2 – who are said to be the Eye Witnesses for the occurrence have deposed only to the point that A-1 had taken Sheikh Dawood with him. In their turned version in the Court, P.Ws.1 and 2 have stated that after A-1 had taken Sheikh Dawood, P.Ws.1 and 2 had gone to the Blood Test Centre for getting the Report of P.W.2's Grandfather and when they came back, they found Sheikh Dawood with bleeding injuries near Kamalalayakarai Thiyagaraja Swamy Mela Gopura Vasal. P.Ws.1 and 2 have remained indifferent regarding the occurrence. Though they have exhibited indifference, that does not in any way affect the core of the Prosecution case. 19. Presence of P.Ws.1 and 2 in the scene of occurrence is well spoken by P.W.3. Further, Pant and Shirt of P.W.2 (M.Os.2 and 3) found to be containing "B" Group Blood, the same blood group as that of Deceased-Sheikh Dawood. Obviously, P.Ws.1 and 2 have turned hostile as to the occurrence with deliberate intention to save their friend / A-1. Though they have turned hostile, their evidence clearly proves the circumstance that the First Accused had taken the Deceased towards a place and that the Deceased had last seen alive in the company of the Accused. Evidence of P.W.5 – another student, studying in the Tuition who saw the First Accused talking with Deceased and taking him away also fortifies the version of P.Ws.1 and 2. 20. P.W.3 is the Key Witness. Evidence of P.W.5 – another student, studying in the Tuition who saw the First Accused talking with Deceased and taking him away also fortifies the version of P.Ws.1 and 2. 20. P.W.3 is the Key Witness. He is the Rickshaw Pullar in the Cycle-rickshaw stand at Kamalalayakarai Thiyagaraja Swamy Temple, Thiruvarur. P.W.3 has clearly spoken about the occurrence that at about 09.00 p.m., A-1 and the Deceased were entangled in a scuffle. During that encounter, A-1 inflicted injury with M.O.7 on the Left Thigh and again inflicted one injury below Umbilicus Region and that the Deceased had fallen down. P.W.3 has identified Deceased – Sheikh Dawood from M.O.6-Photograph. P.W.3 would regularly keep his Rickshaw in the Gandhi Rickshaw stand, which is at the short distance from the place of scene of occurrence. P.W.3 is a natural and probable Witness. His evidence being from independent source, there is no reason to reject his version. Evidence of P.W.3 is formidable piece of evidence against the First Accused. 21. Reliability of P.W.3 is attacked mainly on the ground of non-holding of Test Identification Parade in respect of the First Accused. In his evidence, P.W.3 has stated that he had known the Accused for the first time only on the date of occurrence. Thereafter, he is said to have identified the First Accused only before the Trial Court, two years after the occurrence. Hence, it is contended that in the absence of any earlier Test Identification Parade, the Identification of A-1 by P.W.3 is unreliable and it would be unsafe to base the conviction on his evidence. No doubt, P.W.3 has stated, He is said to have learnt about the name of the First Accused about one week prior to his deposing in the Court in January 1998. Attacking the evidence of P.W.3, it is contended that P.W.3 having not known the First Accused, his Identification of the First Accused is unsafe to base the conviction. As said earlier, P.W.3 has been parking his Rickshaw in the Gandhi Rickshaw Stand. At the time of occurrence, there was sufficient light. As seen from Ex.P.6-Observation Mahazar, there was Sodium Vapour Lamp of the Temple near the place of occurrence. The occurrence must have persisted for some time. P.W.3 had sufficient opportunity to observe the occurrence and the identify of the assailant. It must have left an indeliberate impression in the mind of P.W.3. As seen from Ex.P.6-Observation Mahazar, there was Sodium Vapour Lamp of the Temple near the place of occurrence. The occurrence must have persisted for some time. P.W.3 had sufficient opportunity to observe the occurrence and the identify of the assailant. It must have left an indeliberate impression in the mind of P.W.3. Identity of A-1 in the Court by P.W.3, two years after the occurrence cannot be doubted due to fallible human memory. Non holding of prior Test Identification Parade does not affect the Identification of A-1 by P.W.3. Identification of A-1 by P.W.3 cannot be doubted. Further, learned Sessions Judge, who had the opportunity of observing P.W.3 in identifying A-1 and the Deceased with reference to M.O.6-Photograph has accepted his evidence, as trustworthy. There is no reason to take a different view. 22. Confession Statement of A-1 and recovery of M.O.7-Knife is yet another formidable circumstance against A-1. The Accused have surrendered themselves before the Court. On proper application, Police Custody of A-1 was taken and he was interrogated in the presence of P.W.8-Village Administrative Officer and Village Assistant – Gopal on 09.12.1995. Admissible portion of the Confession Statement led to the recovery of M.O.7-Knife from in front of the house of A-1. Recovery of M.O.7 – Blood Stained Knife at the instance of A-1 is a strong piece of evidence against A-1. No reasonable explanation is forthcoming from A-1 explaining the presence of Blood in M.O.7. 23. Recovery of M.O.7 and drawing of inference against the Appellant / First Accused is attacked on the ground that P.W.3 has not identified M.O.7-Knife in the Court. This contention does not merit acceptance. The occurrence was in the night time – at about 09.00 p.m. P.W.3 would not have had such keenness to observe the weapon. Even if he had observed and identified M.O.7, which would have been termed as unnatural. Non Identification of M.O.7 by P.W.3 does not affect the Prosecution case nor vitiates Seizure of M.O.7 at the instance of A-1. 24. Overt act spoken by P.W.3 is amply corroborated by Medical Evidence. While conducting Post Mortem, P.W.11 has noted an incised Wound over the lower end of the latero posterior aspect of the Left Thigh. P.W.3 has stated that A-1 caused Injury on the Left Thigh. 24. Overt act spoken by P.W.3 is amply corroborated by Medical Evidence. While conducting Post Mortem, P.W.11 has noted an incised Wound over the lower end of the latero posterior aspect of the Left Thigh. P.W.3 has stated that A-1 caused Injury on the Left Thigh. P.W.3 has not specifically stated the situs of injury as Left Thigh; but the same cannot be urged as variation between the oral evidence and Medical evidence. The consistency between the oral evidence and the Medical Evidence is a formidable circumstance lending assurance to the Prosecution case. 25. Finding that A-2 and A-3 have not shared the common intention and that there was no evidence, learned Sessions Judge has acquitted A-2 and A-3. On the evidence of P.W.3 and other evidence adduced by the Prosecution, A-1 was rightly found guilty for causing the death of Sheikh Dawood. Though A-1 intercepted Sheikh Dawood and taking him aside and causing him incised wound with M.O.7-Knife, the occurrence was only out of anger. There was no pre-meditation or design to cause the murder of Sheikh Dawood. Rightly A-1 was convicted under Sec.304(I) I.P.C. 26. A-1 has inflicted the following two cut injuries on Sheikh Dawood : "An incised Wound over the lower end of the latero posterior aspect of the Left Thigh. On dissection, there was a haematoma of about 500 ml in the injured area, and the popliteal artery and vein found cut at the site. A punctured wound 6 CM below the umbilicus entered into the peritoneal cavity, an ellipitcal shaped and transversly placed. On opening the abdomen peritoneal is punctured at the injury site. There is no free fluid blood in side the peritoneal cavity and there is no injury to the internal organs". 27. M.O.7 is Pichuva Knife measuring 24 CM. The description of M.O.7 is as follows:- 28. The circumstance that the First Accused had in his possession of Knife with a horn handle and taking Sheikh Dawood from the house of Santhana Krishnan and attacking him causing him injuries clearly shows that the First Accused had intentionally caused the Murder of Deceased Sheikh Dawood. For the Conviction under Sec.304 (I) I.P.C, learned Sessions Judge has imposed Sentence of Imprisonment of Seven years. For the Conviction under Sec.304 (I) I.P.C, learned Sessions Judge has imposed Sentence of Imprisonment of Seven years. In consideration of the nature of attack, the weapon used and the injuries sustained, the period of Sentence of Imprisonment of Seven years is neither harsh nor unreasonable warranting interference in this Appeal. Request for reduction of Sentence cannot be considered. This Appeal has no merits and is bound to fail. 29. C.A.No.116 of 1998 :- Therefore, the Judgment dated 06.02.1998 of the Principal Sessions Judge, Nagappattinam in S.C.No.95 of 1997, convicting the Appellant / First Accused under Sec.304(II) I.P.C and the sentence of Imprisonment of Seven years are confirmed and this Appeal is dismissed. 30. Since the Appellant/First Accused is on bail, the Trial Court is directed to secure the custody of the Appellant/First Accused and make him to undergo remaining period of sentence.