Judgment :- (Criminal Appeal against the Judgment and conviction dated 29.10.2002 made in S.C.No.10 of 2002 on the file of the Principal Sessions Judge, Namakkal.) A.R. Ramalingam, J. Appellants/A2 to A10 before the Trial Court in S.C.No.10 of 2002 (A1 died during trial) have been convicted under sections 147, 148, 302 read with 34, 302 read with 149 and 324 IPC. 2. Brief facts behind this appeal can be stated as follows:- The deceased is one Perumal Kandar and PW1 Edison, PW2 Senthamaraikannan, PW3 Mohan and PW4 Prakasam are sons of the deceased Perumal Kandar. They are all residents of Anichampalayam village within the jurisdiction of Velur Police Station. Out of the nine accused, some of them are residents of Anichampalayam and others are residents of Nanjai Udayar village. A2, A3, and A4 are sons of A1. A4 is the father in law of A3. A8 is the son of A7. There was some misunderstanding and enmity between the deceased Perumal Kandar''s family and the family of A1 Ramalingam in connection with ridges between their lands. Whileso, on 6.5.1997 at about 11.00 am, A4 Rajendran, A7 Dhandapani and A9 Kandavel went to the house of the deceased Perumal Kandar and asked him to come for settlement through panchayat, but, Perumal Kandar refused and stated that the matter could be seen in the court itself. A4, A7 and A9 returned after warning that the family of Perumal Kandar would be destroyed. On the same day, at 8.30 pm, PW1 Edison, PW2 Senthamaraikannan and PW3 Mohan were sitting in front of their house and having conversation. At that time, the accused viz., A1, A7 A9 and A10 armed with Aruval, A2, A3, A4, A5 and A8 armed with sticks and reapers came there in an unlawful assembly. On the same day, at 8.30 pm, PW1 Edison, PW2 Senthamaraikannan and PW3 Mohan were sitting in front of their house and having conversation. At that time, the accused viz., A1, A7 A9 and A10 armed with Aruval, A2, A3, A4, A5 and A8 armed with sticks and reapers came there in an unlawful assembly. Further, A1 Ramalingam (since deceased) cut Perumal Kandar with aruval on his forehead, A9 cut with aruval on his right leg, A2, A3 and A4 beat Perumal Kandar with sticks and reapers indiscriminately on several parts of his body, A5 and A6 kicked Perumal Kandar with legs and in the meanwhile, PW2 tried to save his father Perumal Kandar from attack and at that time, A10 cut PW2 on his left backside of the head with aruval, A2, A3, A4 and A5 also attacked PW2 with sticks and reapers and at that time PW1 intervened and he was also attacked by A7 with aruval upon the left side of his head. Further, A2, A3, A4 and A8 assaulted PW1 with sticks and reapers indiscriminately and that while A4 Rajendran snatched the aruval from A1 and tried to cut Perumal Kandar. PW3 Mohan pulled the aruval from A4 and cut A4 on his left forearm and thereafter, all the accused ran away from the scene of occurrence. Subsequently, PW4 Prakasam son of Perumal Kandar took all the injured persons to the hospital and on the way, PW1 Edison got down from the auto at the Velur Police Station and gave complaint marked as Ex.P1 at about 9.30 pm on the same date. 3. PW13 Sub Inspector of Police viz., Chandramouli received Ex.P1 and registered this case as Crime No.230 of 1997 and prepared express printed FIR marked as Ex.P22 and despatched the same to the Judicial Magistrate and his higher officials. Further, PW13 received intimation about the sustaining of injuries by A4 Rajendran from the hospital and proceeded to Velur Government Hospital and recorded the statement of A4 Rajendran at 10.15 pm and came back to the police station and registered the same as Crime No.231 of 1997 and prepared express printed FIR marked as Ex.P25 and took up investigation. PW13 visited the place of occurrence and prepared observation mahazar Ex.P26 and rough sketch marked as Ex.P27 and also recovered M.Os. PW13 visited the place of occurrence and prepared observation mahazar Ex.P26 and rough sketch marked as Ex.P27 and also recovered M.Os. 1 to 10 by preparing mahazar marked as Ex.P3 and also enquired Perumal Kandar and recorded his statement marked as Ex.P28. In the meanwhile, PW6 Dr. Vedamanickam, who attended the injured witnesses referred them to Government Hospital, Salem and thereafter the deceased Perumal Kandar was admitted at Palaniyandi Nursing Home, Salem on 10.5.1997 for effective treatment and however, Perumal Kandar died at 5.00 am on 15.5.1997. Thereupon, intimation marked as Ex.P10 about the death of Perumal Kandar was sent to police. 4. PW14 Inspector of Police viz., Arjunan, on receipt of death intimation, altered the FIR in Crime No.230 of 1997 into one of section 302 IPC and prepared the altered express FIR marked as Ex.P29 and despatched the same to the Judicial Magistrate as well as his higher officials. In continuation of his investigation, PW14 went to Palaniyandi Nursing Home and conducted inquest upon the dead body of Perumal Kandar in the presence of panchayatdars and prepared inquest report marked as Ex.P30 and also sent requisition to the doctor marked as Ex.P20 for conducting post mortem. On receipt of the requisition, PW12 viz., Dr. Karthikeyan conducted post mortem upon the dead body of Perumal Kandar and found the following ten external injuries "1) An oblique sutured wound, on the left side of forehead 5 cms in length 1 cm above the left eyebrow, on removal of the sutures, 0.5 cm in breadth, bone deep, edges healing. 2) Abrasions:- With black scab on the back of upper 3rd of right arm, 5 cms x 2 cms back of middle 3rd of right arm, 7 cms x 5 cms. O/D, underlying dark red bruising, on the outer aspect of right side of abdomen, 11 cms x 3 cms. 3) A vertical sutured wound on the outer aspect of upper 2/3 of right forearm, 15 cms in length, on removal of sutures, edges clean cut, 9 cms in length, bone deep. 4) A vertical sutured wound, on the inner aspect of upper 2/3 of left forearm, 14 cms in length. On removal of the sutures, edge clean cut, bone deep. O/D, the muscles are found bruised – Dark read. Fracture of shaft of middle 3rd of both bones of right forearm at different levels. 4) A vertical sutured wound, on the inner aspect of upper 2/3 of left forearm, 14 cms in length. On removal of the sutures, edge clean cut, bone deep. O/D, the muscles are found bruised – Dark read. Fracture of shaft of middle 3rd of both bones of right forearm at different levels. The fractured segments are kept in position by plating. 50 ml of dark fluid blood in the vicinity. 5) An oblique sutured wound, on the right inquinal region, 8 cms in length. On removal of the sutures, 1.5 cms in breadth, deep to the cavity. 6) A vertical sutured wound, on the inner aspect of upper 2/3 of right leg, 24 cms, in length, on removal of the sutures, edges clean cut, 3 cms in breadth, exposing the underlying structures. O/E, the underlying muscles are found bruised – Dark red. The shaft of the tibia at its upper 3rd found fractured into many pieces in a communited manner, plating done. a circular wound of diameter of 1.5 cms is found on the front of upper 3rd of right leg with excoreation of the skin around the margins. 75 ml of fluid blood in the vicinity. 7) A vertical sutured wound, on the font of upper half of right leg and lower half of front of right knee, 21 cms in length, on removal of the sutures, edges clean cut, 4 cms in breadth, exposing the underlying structures. O/E, the muscles, are found bruised – Dark red. Fracture of shaft of upper 3rd of left tibia into many pieces in a communited manner. Plating done 25 cms of fluid blood in the vicinity. Fibula on both the legs are intact. 8) An oblique sutured wound, on the outer aspect of left inquinal region 11 cms in length, on removal of the sutures, edges clean cut, 1 cm in breadth entering into the abdominal cavity. 9) A vertical sutured wound, on the front of upper 2/3 of left forearm, 14 cms in length, on removal of the sutures 2 cms in breadth, edges clean cut, the underlying muscles bruising – Dark red. O/E, fracture of shaft of middle 3rd of left radius into two segments. Plating done. 10) A vertical sutured wound, on the inner aspect of lower 1/3 of left forearm, 9 cms in length. On removal of sutures 3 cms in breadth. O/E, fracture of shaft of middle 3rd of left radius into two segments. Plating done. 10) A vertical sutured wound, on the inner aspect of lower 1/3 of left forearm, 9 cms in length. On removal of sutures 3 cms in breadth. Edges clean cut, exposing the underlying structures. O/D, underlying muscles bruised Dark red. Fracture of shaft of lower 3rd of left Ulna into two segments. Plating done. Blood clots are adherent at fractured ends." Apart from internal injuries and furnished post mortem report marked as Ex.P21 with opinion that Perumal Kandar should have died of shock and haemorrhage due to multiple fractures. 5. In the meanwhile, PW14 arrested A5 on 20.7.1997, A7 and A8 on 7.11.1997, A10 on 24.12.1997, A9 on 25.12.1997 and finally examined witnesses and doctors and completed the investigation and filed charge sheet in crime No.230 of 1997 under sections 147, 148, 323, 324, 302 read with 149 against the accused and referred the case in crime No.231 of 1997 given by A4 Rajendran as mistake of fact. During the course of trial, P.Ws.1 to 14 were examined besides marking of Exs.P1 to P32 on the side of prosecution and Exs.D1 and D2 on the side of defence apart from M.Os. 1 to 11. During the questioning under section 313 Cr.P.C., the accused have denied their complicity in the offence and gone to the extent of saying that A4 Rajendran alone was attacked by PW1 Edison, PW2 Senthamaraikannan, PW4 Prakasam, the deceased Perumal Kandar and another Ramasamy at about 8.30 pm on 6.5.1997 in front of the house of A4 Rajendran with aruval and caused grievous injury upon him and that the case given by A4 Rajendran has not been properly investigated and a false case has been foisted against the accused. 6. 6. After analysing the evidence, the Trial Court has convicted and sentenced A2 to A5, A7, A9 and A10 to undergo one year rigorous imprisonment under section 148 IPC, A6 and A8 to undergo six months rigorous imprisonment under section 147 IPC, A2 to A4 and A9 to undergo life imprisonment with fine of Rs.500/- under section 302 read with 34 IPC, A7, A8 and A10 to undergo life imprisonment with fine of Rs.500/= under section 302 read with 149 IPC, A2 to A4 to undergo one year rigorous imprisonment each on two counts under section 324 IPC, A7, A8 and A10 to undergo one year rigorous imprisonment under section 324 IPC. The above said conviction and sentence is the subject matter of this appeal. 7. After taking us through the entire evidence, the learned counsel appearing for the appellants would contend that A4 Rajendran went to the Velur Government Hospital for treatment for his injury and though the Sub Inspector of Police visited the hospital, he did not issue police memo for P.Ws.1, 2 and 3 or for the deceased Perumal Kandar and no statement of them was recorded in the hospital and that further Ex.P1 has been obtained later from PW1 after coming to know about the admission of A4 Rajendran in the hospital to show as if Ex.P1 is earlier by explaining the injuries on A4 in Ex.P1 itself and that P.Ws.1, 2 and A4 were the injured persons and that though a case has been registered in Crime No.231 of 1997 based upon the statement given by A4 Rajendran alleging the attack made by the witness parties, at the same time viz., 8.30 pm in front of his house, that case has not been properly investigated and the same has been referred as mistake of fact and that therefore, the investigation is biased and the accused have been falsely implicated in this case after ignoring the fact that the witness parties sustained injuries injuries in front of the house of A4 by some third party villagers and that particularly, the witness parties alone are aggressors and thereby the accused are liable to be acquitted. By way of alternative argument, the appellants'' counsel contended that in any event, offence under section 302 IPC cannot be attracted on the basis of death of Perumal Kandar inasmuch as he was an old man and died nearly after ten days after the occurrence after taking treatment in Velur Government Hospital, Salem Government Hospital and Palaniyandi Nursing Home and undergoing many operations. In other words, he contended that lesser offence only under section 304 IPC can be attracted inasmuch as death of Perumal Kandar cannot be necessarily due to the injuries sustained by him and instead it may be due to various other reasons in the private hospital itself. On these aspects, we have heard the Additional Public Prosecutor. 8. On going through the evidence of eyewitnesses viz., P.Ws.1 to 3, Edison, Senthamaraikannan and Mohan, we are able to see that their evidence with reference to the manner of occurrence and overtacts of all the accused is cogent and trustworthy without considerable contradiction. Particularly, they have stated that A2, A3 and A4 attacked the deceased Perumal Kandar with sticks, A7, A9 and A10 attacked the deceased with aruval, A2, A3 and A4 attacked P.Ws.1 and 2 with sticks, A7 and A10 also attacked respectively P.Ws.1 and 2 with aruval and A8 attacked PW1 with sticks, clearly without giving any room for suspecting their versions. 9. Further, PW6 Dr. Vedamanickam has given evidence to the effect that while he was functioning as Doctor at Velur Government Hospital at about 9.00 pm on 6.5.1997, A4 Rajendran brought by one Jayakumar for treatment by saying that at about 8.30 pm, he was attacked by six known persons in front of his house and on examination, he found 6-1/2" x 3-1/2" cut injury upon his left hand and then he was referred to Salem Government Hospital for further treatment and the said injury is grievous in nature since there was fracture of bone and it is he who furnished Ex.P5 wound certificate. He also happened to examine Perumal Kandar (deceased) brought by PW4 Prakasam at about 9.40 pm on 6.5.1997 by saying that he was attacked by ten known persons at about 8.30 pm and on examination, he found the following six external injuries:- "1) Incised injury 4"x2" x bone depth above left eyebrow fracture. 2) Pain and tendon over upper third of left forearm. Fracture radius and ulna. 2) Pain and tendon over upper third of left forearm. Fracture radius and ulna. 3) Pain and tendon below right elbow – fracture radius and ulna. 4) Abrasion with contusion around it on medial side of upper third of left leg. 5) Incised injury 1-1/2" x ½" x bone depth on upper third of right leg. 6) Abrasion 3" x ½" on upper third right side of abdomen at level of mid-axillary line." And furnished Accident Register copy marked as Ex.P6 and also opined that injury Nos.1 to 5 could be caused by weapons marked as M.Os.1 to 8 (aruval and sticks). 10. PW6 also happened to examine PW2 Senthamaraikannan who came for treatment by saying that he was attacked by five known persons with aruval at about 8.30 pm on 6.5.1997 and he was able to find two external injuries such as "1) Incised injury 3"x 1" x bone depth on let occipital bone of scalp. 2) Contusion 1.1/2 x 1.1/2 on lat side of upper third of left thigh." And opined that those injuries are simple in nature and furnished wound certificate marked as Ex.P7 and those injuries could be caused by the aruval and sticks marked as M.Os.1 to 8. 11. PW6 also happened to examine PW1 Edison brought by his brother PW3 by saying that he was attacked by five known persons with aruval at about 8.30 pm in their house on 6.5.1997 and found one external injury viz., "Horizontally seen incised injury 1.1/2 x ½" x bone depth on left parietal bone of scalp." And furnished wound certificate marked as Ex.P8 opining that the injury is simple in nature and the said injury could be caused with aruval among the weapons marked as M.Os.1 to 8 and all those injuries on the above said persons could have been caused in the time and manner alleged. Therefore, the evidence of P.Ws.1 and 2 is clearly corroborated by the evidence of Dr.Vedamanickam by saying that because of the attack made by all the accused, the deceased Perumal Kandar as well as P.Ws.1 and 2 sustained injuries while they were in their house at about 8.30 pm. 12. Further, PW7 Dr. Ashok, PW9 Dr. Jagadeesan and PW11 Dr. Therefore, the evidence of P.Ws.1 and 2 is clearly corroborated by the evidence of Dr.Vedamanickam by saying that because of the attack made by all the accused, the deceased Perumal Kandar as well as P.Ws.1 and 2 sustained injuries while they were in their house at about 8.30 pm. 12. Further, PW7 Dr. Ashok, PW9 Dr. Jagadeesan and PW11 Dr. Vaiyapuri have spoken about the aspects that they were attached to Palaniyandi Mudaliar Memorial Hospital at Salem and the injured Perumal Kandar aged about 75 was admitted in their hospital on 10.5.1997 and treatment was given to him upto 15.5.1997 and intensive treatment was given to him and he was having various fractures upon his hands and legs and fractures were suspected upon his ribs and lastly the said Perumal Kandar died at about 5.00 pm on 15.5.1997 in the intensive care unit of the said hospital itself. Moreover, PW12 viz., Dr. Karthikeyan, who conducted post mortem, has found ten external injuries totally besides internal injuries and furnished post mortem report marked as Ex.P21 along with opinion that the said Perumal Kandar should have died due to various fractures and consequent shock and haemorrhage. Therefore, the evidence of P.Ws.1 to 3 coupled with the evidence of the above said Doctors clearly indicates that because of the attack made by the accused and consequent injuries like fractures, etc., the said Perumal Kandar died of course after ten days after intensive treatment. 13. On the other hand, it is the suggestion of the accused to PW2 during cross examination as if there was no occurrence as alleged by P.Ws.1 to 3 and instead the occurrence happened in front of the house of A4 Rajendran whereby PW2 and his family members went to the house of A4 Rajendran collectively and cut upon the hand of A4 Rajendran and due to the consequent clash, the deceased as well as P.Ws.1 and 2 only sustained injuries and none of the accused were responsible for the said injuries and however, the accused have been implicated in this case by taking advantage of the injury sustained upon the witnesses and the deceased. 14. If the evidence of PW1 Edison and Ex.P22 viz., FIR concerned with this case is perused carefully, it seems that the same has been registered upon the complaint given by PW1 at about 9.30 pm in person. 14. If the evidence of PW1 Edison and Ex.P22 viz., FIR concerned with this case is perused carefully, it seems that the same has been registered upon the complaint given by PW1 at about 9.30 pm in person. At the same time, if Ex.P25 viz., FIR registered as Crime No.231 of 1997 based upon the statement given by A4 Rajendran is perused, it seems that it has been given at about 11.00 pm on 6.5.1997 and no doubt, the occurrence mentioned in both the FIRs is said to have occurred at about 8.30 pm on the same date. But, Ex.P25 FIR shows the place of occurrence as before the house of A4 Rajendran and Ex.P22 FIR in this case shows the place of occurrence as house of the deceased Perumal Kandar. In such circumstances, it is surprising as to why A4 Rajendran has not explained the injuries sustained by the deceased and P.Ws.1 and 2 in his statement of complaint marked as Ex.P25 itself and it is more so when there is clear version that as soon as he made hue and cry, the neighbours rushed to the spot and the witness parties herein ran away from the scene of occurrence and then he proceeded to the hospital for treatment. When that being the FIR, for the first time, attempt has been made during the cross examination of P.Ws. 1 to 3 and particularly PW2 as if the deceased and P.Ws.1 and 2 in this case could have sustained injuries through some other third party villagers by way of second thought for the sake of defence. When the occurrence places between the two FIRs is different from one another, it cannot be construed as if Ex.P25 is a counter case though same time is mentioned as time of occurrence. Therefore, unless and until A4 Rajendran is able to explain as to how the deceased and P.Ws.1 and 2 sustained injuries at one and the same time, it cannot be believed as if the deceased and his family members alone could be aggressors and caused injury upon A4 Rajendran. On the other hand, P.Ws.1 and 2 injured witnesses and PW3 eyewitness have categorically explained as to how the deceased and PW2 sustained injuries even in the earliest document viz., Ex.P1 complaint and Ex.P22 FIR. 15. On the other hand, P.Ws.1 and 2 injured witnesses and PW3 eyewitness have categorically explained as to how the deceased and PW2 sustained injuries even in the earliest document viz., Ex.P1 complaint and Ex.P22 FIR. 15. No doubt, the counsel for the appellants has attempted to say as if Ex.P1 was prepared only at a later point of time after the visit made by the police to the Velur Government Hospital and after knowing about the injury sustained by A4 to make it appear as if Ex.P1 is in earlier point of time with explanation of injury upon A4 Rajendran. This sort of contention, in the light of the available materials, does not appear to be logically acceptable or believable. No doubt, it was contended by the appellants'' counsel as if the Sub Inspector of Police has not issued police medical memo to PW1 for taking treatment and no statement of PW2 and the deceased Perumal Kandar was recorded in the hospital and such lapse cannot be taken advantage to say as if the entire case against the appellant/accused is fabricated and false one and instead it is quite natural on the part of the injured persons to rush to the hospital for taking treatment and saving the life without resorting to get police medical memo. Therefore, we are convinced that the prosecution has proved their case beyond reasonable doubt and rightly the investigation officer referred the case in Ex.P25 given by A4 Rajendran. 16. Coming to the alternative contentions of the appellants'' counsel to the nature of offence, we are able to see that the deceased Perumal Kandar is about 75 years old and was taking treatment in three hospital and after nearly ten days of intensive treatment, he died on 15.5.1997. 16. Coming to the alternative contentions of the appellants'' counsel to the nature of offence, we are able to see that the deceased Perumal Kandar is about 75 years old and was taking treatment in three hospital and after nearly ten days of intensive treatment, he died on 15.5.1997. Taking note of these aspects, we are of the view that A2, A3, A4, A7, A8, A9 and 10 had intention to cause bodily injury as is likely to cause death within the meaning of culpable homicide under section 304(i) IPC and it cannot be directly under section 302 IPC and on this score, we are inclined to set aside the conviction and sentence given by the Trial Court under section 302 read with 34 IPC against A2, 3, A4 and A9 and under section 304 read with 149 against A7, A8 and 10 and instead we convict them under section 304(1) read with 34 IPC and sentence them to undergo seven years rigorous imprisonment each and in other respects, the conviction and sentence under section 148 against A2, A3, A4, A5, A7, A9 and A10, under section 147 against A6 and A8, under section 324 (two counts) against A2, A3 and A4 and under section 324(one count) against A7, A8 and A10 has to be confirmed. 17. In the result, the appeal is allowed in part only to the extent of modification of conviction and sentence from section 302 IPC to 304 (i) read with 34 IPC against A2, A3, A4, A7, A8, A9 and A10 and in other respects, the conviction and sentence of the Trial Court is confirmed. The Trial Court is directed to secure the custody of the appellants/accused to enable them to undergo the remaining period of sentence.