Judgment :- (PRAYER: Appeal against the Judgment dated 29.01.2002 passed by the learned First Additional District and Sessions Judge, Dharmapuri District at Krishnagiri in S.C.No.91 of 1999.) K.N.Basha, J. The appellants are A-1 to A-5. A-1 has been convicted under Section 302 read with section 34 I.P.C and sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo two years rigourous imprisonment and also convicted under Section 148 I.P.C and sentenced to undergo one year rigourous imprisonment. A-2 to A-4 have been convicted under Section 147 I.P.C and sentenced to pay a fine of Rs.400/-, in default, to undergo three months rigourous imprisonment and also convicted under Section 326 read with Section 114 I.P.C and sentenced to undergo three years rigourous imprisonment and to pay a fine of Rs.500/-, in default, to undergo six months rigourous imprisonment. A-5 has been convicted under Section 147 and 323 I.P.C and sentenced to pay a fine of Rs.400/- on each count and in default, to undergo three months rigourous imprisonment. The appellants, challenging their conviction and sentence, have preferred this appeal. 2. The brief facts of the case as projected by the prosecution are as follows: A-1 is the younger brother of the deceased Ramakrishnan. A-2 and A-3 are brothers-in-law of A-1. A-4 is the co-brother of A-1. A-5 is the son of the younger brother of A-1's father-in-law. P.W.1 is the son of the deceased and P.W.2 is the daughter of the deceased. The deceased and all the accused are residents of Gundalpatti village. 3. The motive, according to the prosecution, is that A-1 is the illicit arrack seller. The residence of A-1 is nearer to the residence of the deceased. The customers of the first accused, after consuming arrack, used to quarrel among themselves frequently in front of the house of the deceased. Therefore, the deceased protested for A-1 that he should not sell arrack. Four months prior to the occurrence, when the deceased protested against the first accused selling arrack, the deceased beat A-1 with a brick on his hand. But the deceased has not given any report to the police. Therefore, there was strained feelings between the deceased and the first accused. 4. On the fateful day of the occurrence i.e., on 02.08.1993 at 6.00 p.m., A-1 was selling arrack and the customers, who consumed the arrack, were quarrelling among themselves. But the deceased has not given any report to the police. Therefore, there was strained feelings between the deceased and the first accused. 4. On the fateful day of the occurrence i.e., on 02.08.1993 at 6.00 p.m., A-1 was selling arrack and the customers, who consumed the arrack, were quarrelling among themselves. The deceased protested and asked A-1 not to sell arrack, since the sale of arrack results in frequent quarrel. Immediately, A-1 asked the other accused to catch hold of the deceased and A-1 rushed to the house, which is 40 feet away from the scene and brought a suri knife, M.O.1. At that time A-2 to A-4 caught hold of the deceased. A-1 stabbed the deceased with M.O.1, suri knife, on his left side chest and A-5 beat the deceased with a wooden log. Thereafter, A-5 also attempted to assault P.W.1, the deceased and his wife and while A-1 intervened, he sustained an injury on his head. Thereafter A-2 to A-5 attempted to attack P.W.1's mother and his grand mother. But they left the place and stood on the other side. P.W.1 took his father inside the house and closed the doors by bolting from inside. A-2 to A-5 broke open the door of the house. P.W.1, through the other door, went to the village and informed his uncle-P.W.5 about the occurrence. P.W.5, on receiving the information given by P.W.1, came to the scene of occurrence and found Ramakrishnan, since deceased, lying unconscious. Thereafter, P.Ws.1 & 5 and the wife of the deceased put Ramakrishnan in a cot and proceeded to the hospital through their village. On the way, Ramakrishnan died and therefore they brought back the dead body of Ramakrishnan to the house of P.W.5. 5. P.W.1 thereafter went to Mathikonpalayam police station and gave a report, Ex.P.1 to P.W.11, the Sub-Inspector of Police at 8.00 p.m. on 02.08.1993. P.W.11, on receipt of Ex.P.1, registered a case in Cr.No.519 of 1993 for offences under Sections 147, 148, 323, 427 and 302 I.P.C. He prepared the express First Information Report, Ex.P.14, and sent the same to Dharmapuri Judicial Magistrate, No.I. He also sent the copies of Ex.P.14 to the higher police officials. 6. P.W.11, on receipt of Ex.P.1, registered a case in Cr.No.519 of 1993 for offences under Sections 147, 148, 323, 427 and 302 I.P.C. He prepared the express First Information Report, Ex.P.14, and sent the same to Dharmapuri Judicial Magistrate, No.I. He also sent the copies of Ex.P.14 to the higher police officials. 6. P.W.12, Inspector of Police, Dharmapuri Police Station, took up investigation in this case at 1.00 a.m. on 03.08.1993 and went to the scene of occurrence at 6.00 a.m. He prepared the observation mahazar, Ex.P.16 and also the rough sketches, Exs.P.15 and 17. Thereafter, he examined the witnesses and held inquest over the dead body of the deceased from 7.45 a.m. to 10.00 a.m. on 03.08.1993 and prepared Ex.P.18, the inquest report. During inquest, he examined P.Ws.1, 2 and others. Thereafter, P.W.12 made arrangements to sent the dead body for post-mortem. 7. The Doctor, P.W.3, attached to Dharmapuri Government Head Quarters Hospital, conducted post-mortem on the dead body of the deceased on 03.08.1993 at 1.30 p.m. He found the following external injuries: 1.An incised wound of size 1 cm X 2 cm, elliptical in shape just below the left clavicle medial end, muscle deep. Dired clotted present over the left side chest wall; 2.An abrasion of 1 cm X 4 cm over the Right arm anterior aspect present. On Internal Examinations: A fracture at the first rib left to midline of Thorax and a fracture of Manubrium Sternum just left to midline. Other ribs on both sides were found to be normal. On opening thorax about three litres of blood present. In thoracic cavity, external injury no.(1) which was found to be communicating with left thoracic cavity. Punctured wound was seen over Arch of Aorta 1/4 cm X 1/4 cm in size over the supero anterior aspect. He was of the opinion that the deceased would have died due to shock and haemorrhage due to injury to Aorta about 20 hours prior to autopsy. Ex.P.3 is the post-mortem certificate. 8. On 02.08.1993 at 08.10 p.m., the Doctor, P.W.4 attached to Dharmapuri Head Quarters Hospital, examined A-1, who was brought by his wife alleging that he was assaulted by two known persons at 7.00 p.m on 02.08.1993 and found on him the following injuries: 1.Lacerated injury with fresh blood & Blood clot 3 X 1/2 X 1/4 cm in Temporal region. On 02.08.1993 at 08.10 p.m., the Doctor, P.W.4 attached to Dharmapuri Head Quarters Hospital, examined A-1, who was brought by his wife alleging that he was assaulted by two known persons at 7.00 p.m on 02.08.1993 and found on him the following injuries: 1.Lacerated injury with fresh blood & Blood clot 3 X 1/2 X 1/4 cm in Temporal region. 2.Lacerated injury 4 X 1/2 X 1/2 cm in (R) Parietal region with fresh blood clot. The Doctor found the patient to be conscious, but drowsy and answering questions. He was of the opinion that the injuries were simple in nature. Ex.P.5 is the wound certificate. 9. P.W.4 examined P.W.1 brought by P.W.5 at 3.40 a.m. on 03.08.1993 and found that the following injury: A sutured wound of length 2 cm back of upper end of left forearm. The Doctor was of the opinion that the injury was simple in nature. Ex.P.4 is the wound certificate. 10. Further investigation of the case was taken over by the Inspector of Police, Mathikonpalayam Police Station. After completing the investigation, the Inspector - Gowri Kanthan died. P.W.11, the Sub-Inspector of Police belonging to the same police station, has stated in his evidence that he knows the signature of Gowri Kanthan, Inspector of Police. P.W.11 has further stated that on 16.08.1993 at 4.30 p.m., he along with Gowri Kanthan, Inspector of Police and other police officials searched for the accused and at that time A-1 was arrested and in pursuance of the admissible portion of his confession statement (Ex.P.8), M.O.1, suri knife was recovered under Ex.P.9, the mahazar, in the presence of witnesses. Inspector - Gowri Kanthan, also examined P.Ws.6 to 8 and recorded their statements. After Gowri Kanthan, one Inspector - Murali took up further investigation. He examined the Doctor, P.W.4, who treated P.W.1, on 6.11.1993. On 07.11.1993, he examined the Doctor, P.W.7, who has given treatment to P.W.1. After completing the investigation, the above said Inspector-Murali has filed the charge sheet against Accused 1 to 5. 11. On the side of the prosecution, P.Ws.1 to 12 were examined. Exs.P.1 to 18 were filed and M.Os.1 to 4 were marked. 12. While the accused were questioned under Section 313 of the Code of Criminal Procedure in respect of the incriminating materials available against them in the evidence, they denied their complicity. 13. 11. On the side of the prosecution, P.Ws.1 to 12 were examined. Exs.P.1 to 18 were filed and M.Os.1 to 4 were marked. 12. While the accused were questioned under Section 313 of the Code of Criminal Procedure in respect of the incriminating materials available against them in the evidence, they denied their complicity. 13. On the side of the accused, two defence witnesses, viz., D.Ws.1 and 2 were examined. According to D.W.1, on the date of occurrence, there was a wordy quarrel between the co-brother of the deceased one Vajravel and A-1. A-1 demanded for repayment of Rs.2,000/- given by him, which resulted in wordy altercations. The deceased questioned A-1 as to how he can quarrel with the person who has come to his house. After sometime the deceased came along with his brother P.W.5. At that time P.W.5 was armed with a stick and the deceased was armed with a spade. Once again, there was a wordy quarrel between A-1 and the deceased. P.W.5 beat A-1 with the stick on his head and the deceased beat A-1 with the spade on his head. A-1 swooned and fell down. On hearing the hue and cry of D.W.1, Margandan and others came to the scene and put A-1 in a cot and took him upto the Main Road and from there, they took him to Mathikonpalayam police station by auto. They reported about the occurrence to the police. They were informed by the Sub-Inspector of police to take A-1 to the hospital and there he would enquire them later on. Thereafter, A-1 was admitted at the Government Hospital, Dharmapuri. D.W.1 stated that she is not aware as to how the deceased sustained the injuries. Further, she stated that A-2 to A-5 are their relatives and they were not present at the time of occurrence. 14. Margandan, D.W.2, stated in his evidence that on the date of occurrence, after hearing the hue and cry of D.W.1, he rushed to the scene along with others and found A-1 lying on the floor in front of the house. Thereafter, he and others took A-1 in an auto to Mathikonpalayam police station. 14. Margandan, D.W.2, stated in his evidence that on the date of occurrence, after hearing the hue and cry of D.W.1, he rushed to the scene along with others and found A-1 lying on the floor in front of the house. Thereafter, he and others took A-1 in an auto to Mathikonpalayam police station. It is the case of D.W.2 that the wife of A-1 informed the police about the occurrence and as to how A-1 sustained injuries and the police informed them to take A-1 to the hospital and they would come to the hospital and enquire them later on. Thereafter, A-1 was admitted at the Dharmapuri Government Hospital. 15. We have heard the arguments of the learned counsel for the appellants and the arguments of the learned Additional Public Prosecutor. 16. Mr.T.Munirathnam Naidu, learned counsel for the first appellant, vehemently contended that P.W.1 could not have given the complaint at 10.00 p.m since P.W.1 is stated to have been injured and he was treated by the Doctor, P.W.4 only at 3.40 a.m. on 03.08.1993. According to the learned counsel for the appellant, if the report is given at 10.00 p.m. as claimed by P.W.1, the police could have immediately sent P.W.1 to the hospital and he would have been examined by the Doctor even earlier. His further contention is that the Doctor, P.W.4, found on P.W.1 a sutured wound and there is absolutely no explanation as to who has sutured the wound prior to the examination of P.W.4. The learned counsel pointed out that according to P.W.7, a private medical practitioner, who has seen P.W.1 on 03.08.1993 at 1.00 a.m., found an injury on his left hand and he has cleaned the wound with dettol and advised him to go to the Government Hospital and P.W.7 has stated that he has not sutured the wound. Therefore, according to the learned counsel for the appellant, the evidence of P.W.1 is unbelievable and he has not come forward with a true version. The learned counsel for the appellant would further submit that Ex.P.1, the complaint was written by one Jayavelu, uncle of P.W.1, but he has not been examined and Ex.P.1 has not been attested by him. Therefore, the learned counsel contends that there is a doubt about the genuineness of Ex.P.1. The learned counsel for the appellant would further submit that Ex.P.1, the complaint was written by one Jayavelu, uncle of P.W.1, but he has not been examined and Ex.P.1 has not been attested by him. Therefore, the learned counsel contends that there is a doubt about the genuineness of Ex.P.1. The further contention of the learned counsel for the appellants is that A-1 also sustained injury on the vital part viz., head. He further submitted that A-1 was examined by the Doctor, P.W.4, at the earliest point of time on 02.08.1993 at 8.10 p.m. even prior to the examination of P.W.1 by the very same Doctor. Therefore, the learned counsel for the appellant submits that the prosecution has not come forward with the true version and the genesis of the occurrence was suppressed by the prosecution. Yet another contention put forward by the learned counsel for the appellants is that the Doctor, P.W.3, who conducted post-mortem has stated that M.O.1, knife, could not have caused the injuries sustained by the deceased and therefore the occurrence could not have taken place in the manner as alleged by the prosecution. 17. Per contra, the learned Additional Public Prosecutor contends that the prosecution has come forward with clear and cogent version and there is absolutely no infirmity in the prosecution case. He further submitted that the evidence of witnesses, P.Ws.1 and 2, the son and the daughter of the deceased are clear, cogent and consistent and they are the natural witnesses for the occurrence as they were very much present at their house at the time of occurrence, as the occurrence took place near the house of the deceased. The learned Additional Public Prosecutor also submits that the injury sustained by A-1 was explained in Ex.P.1, the complaint given by P.W.1 stating that A-1 sustained injury while intervening at the time of A-5 attempting to beat the deceased and his wife and also the same version was given regarding A-1's injury by P.Ws.1 and 2 in their evidence and therefore the prosecution properly explained the injury sustained by the first accused. The learned Additional Public Prosecutor also pointed out that though the Doctor, P.W.3, stated in his cross that M.O.1 could not have caused the first injury sustained by the deceased on the left chest, yet he has stated in the re-examination that if the knife is used with force, the first injury could have been caused. 18. We have given our anxious and careful consideration to the rival contentions put forward by the learned counsel for the appellants and the learned Additional Public Prosecutor. 19. The occurrence took place on 02.08.1993 at 6.00 p.m. and the deceased died shortly, while he was taken to the hospital. The Doctor, P.W.3, would state that the deceased died due to injuries sustained by him on his left chest due to shock and haemorrhage. As per the Serologist's reports, Exs.P.12 and 13, M.O.1, knife contains the blood group of human-A which tallies with the blood group of human-A in the clothes of the deceased namely, M.Os.2 to 4. The eye-witnesses, P.Ws.1 and 2, categorically stated that A-1 stabbed the deceased with M.O.1, knife on his left chest which is proved to be fatal. There is no material contradictions in the evidence of P.Ws.1 and 2. Though P.W.2 is a child witness, our careful and cautious scrutiny of her testimony satisfies the test of credibility. Therefore, there is a clear and categorical evidence available against the first accused in respect of his causing injury to the deceased. 20. As far as Accused 2 to 4 are concerned, it is alleged by the prosecution that they stated to have caughthold of the deceased prior to the stab given by A-1 to the deceased. There is only a vague, general allegation against A-2 to A-4 and there is no clear and definite version from the prosecution. P.W.1 also stated in cross that he has not stated to the police during his examination and he cannot state even now as to which part of the body of the deceased was held by the Accused 2 to 4. P.W.2 stated in her cross-examination that she cannot state how A-2 to A-4 caughthold of the deceased. It is also the case of the prosecution that A-2 to A-4 are unarmed at the time of the alleged occurrence and only A-5 was armed with a stick. P.W.2 stated in her cross-examination that she cannot state how A-2 to A-4 caughthold of the deceased. It is also the case of the prosecution that A-2 to A-4 are unarmed at the time of the alleged occurrence and only A-5 was armed with a stick. Therefore, we are of the view that the prosecution has not proved its case beyond reasonable doubt against Accused 2 to 4. But the prosecution has proved its case against Accused No.5. 21. Now, we have to consider the nature of the offence committed by the first accused. The undisputed fact remains that the quarrel was started by the deceased at that time when the first accused was unarmed. Further, the first accused also sustained injuries on his head and he was examined by the Doctor, P.W.4 at the earliest point of time even prior to the medial examination of P.W.1. The entire occurrence right from the quarrel between A-1 and the deceased culminating the giving of a single stab to the deceased is within a short span of time and there is absolutely no pre-meditation on the part of the first accused. It is not possible to rule out that there was a scuffle between the deceased and A-1 as both of them sustained injuries. The entire occurrence as per the prosecution version might have taken place without pre-meditation, in a sudden fight, in the heat of passion upon a sudden quarrel. Further, it cannot be stated that in fetching the suri knife, M.O.1, from his house which is 40 feet away from the scene of occurrence and that too at the spur of the moment and thereafter inflicting the injury on the deceased with the knife, M.O.1, the first accused took undue advantage or acted in a cruel or unusual manner. Further, it cannot be stated that in fetching the suri knife, M.O.1, from his house which is 40 feet away from the scene of occurrence and that too at the spur of the moment and thereafter inflicting the injury on the deceased with the knife, M.O.1, the first accused took undue advantage or acted in a cruel or unusual manner. Therefore, we are of the considered view that the case of the first appellant (A-1) comes clearly within the fourth exception under Section 300 I.P.C. and therefore, the first appellant must be imputed with the intention to cause such a bodily injury as was likely to cause death, if not the intention of causing death and therefore, the first appellant can be held guilty only for the offence under Section 304 (Part-I) I.P.C. Therefore, the conviction and sentence imposed on the first appellant/first accused by the trial Court for the offence under Section 302 read with Section 34 I.P.C. in S.C.No.91 of 1999 dated 29.01.2002 made by the learned First Additional Sessions Judge, Dharmapuri is set aside. Instead, the first appellant/first accused is convicted for the offence under Section 304 (Part-I) I.P.C. and sentenced him to undergo rigourous imprisonment for seven years. The fine amount, if any, paid by A-1 for the offence under Section 302 read with 34 I.P.C. is ordered to be refunded to him. The conviction and sentence imposed on the first appellant/first accused by the trial Court for the offence under Section 148 I.P.C. are confirmed. 22. Since evidence is not clear as against appellants 2 to 4/Accused 2 to 4 for offences under Section 147 and 326 read with 114 I.P.C., the conviction and sentence imposed thereunder by the trial court are set aside and they are acquitted of those charges levelled against them. The fine amount, if any, paid by them for those offences is ordered to be refunded to them. The bail bond, if any, executed by them for those offences shall stand cancelled. 23. As far as fifth appellant/fifth accused is concerned, the conviction and sentence of fine imposed by the trial Court for the offences under Sections 147 and 323 I.P.C. are hereby confirmed. 24. Since the first accused is on bail, the trial Court is directed to take steps to secure his custody to undergo the remaining period of sentence. The sentences imposed on first accused shall run concurrently. 25. 24. Since the first accused is on bail, the trial Court is directed to take steps to secure his custody to undergo the remaining period of sentence. The sentences imposed on first accused shall run concurrently. 25. With the above modification in the conviction and sentence, the Criminal Appeal is partly allowed.