Judgment :- Common Judgment (M. Karpagavinayagam, J.) The appellants are A1 and A2. A1- Sampath has been convicted for the offence under Sections 341 and 302 I.P.C. and sentenced to undergo one month SI for the offence under Section 341 I.P.C. and life imprisonment for the offence under Sections 302 and to pay a fine of Rs.5,000/-, in default to undergo six months RI and A2-Selvam has been convicted for the offence under Sections 341 and 302 read with 109 IPC and sentenced to undergo one month SI for the offence under Section 341 IPC and life imprisonment for the offence under Section 302 read with 109 IPC and sentenced to pay a fine of Rs.5,000/-, in default to undergo RI for six months and the sentences were ordered to run concurrently. Challenging the same, A1- Sampath has filed Crl. Appeal No.1155/2003 and A2-Selvam has filed Crl. Appeal No.1063/2004. 2. The facts leading to the conviction are as follows:- a) P.W.1 Kala is the wife of the deceased Karunakaran. P.W.2 Marimuthu is the deceased sister's husband. P.W.3 Sampath is the younger brother of P.W.2. A1 and A2 are close associates. They are also residing in the same village in which the prosecution witnesses reside. b) On 4.9.1998 at about 7.00 p.m., the deceased Karunakaran was standing in front of his house and shouting some persons rearing pigs have caused damage to the surroundings of his house and as such, they are not properly controlling the pigs. Taking that those words were uttered towards A1 and A2- Sampath and Selvam asked the deceased as to why he is scolding them. Due to this, a wordy quarrel arose between the deceased and A1 and A2. A1 and A2 left the scene place immediately stating that they would report this mater to the leader of village P.W.4. Accordingly, they reported the matter to P.W.4. Half an hour later, A1 and A2 came back to the scene place. At that time, the deceased after attending the nature's call was coming back to his house. Both A1 and A2 wrongfully restrained the deceased. A1 took out a knife concealed in his hip and gave a stab on the right shoulder of the deceased. A2 Selvam instigated A1 asking him to attack the deceased. P.W.1 Kala, the wife of the deceased witnessed the occurrence. She raised a alarm. Both A1 and A2 wrongfully restrained the deceased. A1 took out a knife concealed in his hip and gave a stab on the right shoulder of the deceased. A2 Selvam instigated A1 asking him to attack the deceased. P.W.1 Kala, the wife of the deceased witnessed the occurrence. She raised a alarm. c) On hearing the alarm, P.W.2 Marimuthu and P.W.3 Sampath brother-in-laws of the deceased came to the scene place. Both A1 and A2 ran away from the scene. P.W.1, the wife of the deceased came near the deceased and found her husband dead. Then, P.Ws. 1 and 4 went to the police station and gave Ex.P.1 complaint to P.W.15, the Inspector of Police. A case was registered for the offence under Section 302 IPC against both the accused in Crime No.537/1998. P.W.15, the Inspector of Police went the scene of occurrence at 3.00 a.m. on 5.9.1998. He prepared the observation mahazar Ex.P.2, drew the rough sketch Ex.P.9 and conducted inquest on the body of the deceased and examined witnesses. Then, he sent the body for postmortem examination. d) P.W.14, the Doctor conducted postmortem examination on the body of the deceased on 5.9.1998. Ex.P.6 is the postmortem certificate. She opined that the deceased would appear to have died of shock and haemorrhage due to stab injury on the chest, which is vital. e) On 6.9.1998, P.W.15 arrested both A1 and A2 and on their confession, M.O.7 knife was recovered. He sent the material objects for chemical examination. P.W.15, after completing the investigation, laid the charge sheet against both the accused for the offences under Sections 302 read with 109 and 34 IPC. f) During the course of trial, the prosecution examined P.Ws.1 to 15, filed Exhibits P.1 to P.17 and marked M.Os.1 to 7 before the trial Court. g) When the accused were questioned under Section 313 Cr.P.C. with reference to the incriminating materials, they denied their complicity in the crime. On the side of defence, none were examined and no exhibits were marked. h) The trial Court, having regard to the circumstances available on record, concluded that the prosecution has established its case beyond reasonable doubt and convicted and sentenced the accused as stated above. This is the subject matter of challenge in these appeals before this Court filed by the appellants. 3) We have heard Mr. K. Veeraraghavan, learned counsel appearing for the appellant in Crl. This is the subject matter of challenge in these appeals before this Court filed by the appellants. 3) We have heard Mr. K. Veeraraghavan, learned counsel appearing for the appellant in Crl. A. No.1155/2003, Mrs. Jayasri Baskar, learned counsel appearing for the appellant in Crl. Appeal No.1063/2004 and Mr. V.R. Balasubramanian, learned Government Advocate (Crl.side) appearing for the respondent State. 4) Mr. K.Veeraraghavan, learned counsel appearing for the appellant in Crl.A. No.1155/2003 contended that the evidence of P.Ws. 1 and 3 cannot be believed especially when there is delay in FIR and they could not have witnessed the occurrence as there is no light in the scene place and there is also variation between the evidence of P.Ws. 1 and 3 with reference to the overt acts attributed to both the accused and as such, both accused are liable to be acquitted. Alternatively, he made a submission that even if the prosecution case is accepted, since the occurrence had happened in a wordy quarrel, the offence is made out only for the offence under Section 304 Part I or Part II and not under Section 302 IPC. 5. Mrs. Jayasri Baskar, learned counsel appearing for the appellant/A2 in Crl.Appeal No.1063/2004 contended that there is no consistency with reference to the part played by A2 and a reading of Ex.P.1 complaint and the evidence of P.Ws. 1 and 3 would make it clear that the presence of A2 at the scene place would be doubtful and as such, A2 is also liable to be acquitted. 6) In respect of various points urged by the counsel for the appellants, the learned Government Advocate (Crl.side) would submit that the materials available on record would be sufficient to hold the accused guilty and as such, the conviction and sentence passed by the trial Court are justified. 7) We have considered the above submissions and perused the entire records. 8) According to the prosecution, there is a wordy quarrel started at 7.00 p.m. on 4.9.1998. When the deceased Karunakaran scolded the persons who are responsible for their pigs coming to his house and damaging the surroundings, both A1 and A2 who came by that side thought that the deceased scolded them only. Due to this, there was a wordy quarrel. Then, A1 and A2 warned the deceased saying that they would report the matter to the Leader of the village P.W.4. Due to this, there was a wordy quarrel. Then, A1 and A2 warned the deceased saying that they would report the matter to the Leader of the village P.W.4. Then they went to P.W.4 and came back at 7.30 p.m and at that time, the deceased was coming back home after answering the nature's call. At that time, both A1 and A2 waylaid him and A1 attacked the deceased and A2 instigated. There are three eye witnesses to the occurrence. P.W.1 Kala is the wife of the deceased. P.Ws.2 and 3 are brother-in-laws of the deceased. P.W.2 turned hostile and P.W.3 only support the prosecution case. 9) On going through Ex.P.1 the complaint and the evidence of P.Ws.1 and 3, it is clear that the part played by A1 is consistent and there is no doubt whatsoever with reference to the part played by A1. But, with reference to the overt act attributed to A2, there is no consistency in Ex.P.1. P.W.1 would state that A1 attacked the deceased after taking out the knife which was concealed in his hip and thereafter A2 instigated. But, P.W.1 in her chief examination would state that both accused attacked the deceased with knife and P.W.3 would also state that both the accused attacked the deceased. But, for that there is no charge against A2. The charge against A2 is that he only instigated A1. Curiously when P.W.1 was cross examined it was elicited that A1 alone attacked the deceased and A2 caught hold of the deceased at that time. As indicated above, it is not the prosecution case that either A2 attacked the deceased or he caught hold of the deceased when A1 attacked the deceased. In these circumstances, it cannot be said that the part played by A2 has been clearly established as there is no consistent version by P.Ws. 1 and 3 with regard to the part played by A2. 10) In regard to the part played by A1, as stated above, both in Ex.P.1 and in the evidence of P.W.1 and 3, there is clear version that A1 attacked the deceased and caused injury to the vital part of the body. It is also corroborated by the postmortem certificate issued by P.W.14, the Doctor, who conducted the postmortem examination. Ex.P.6 is the postmortem certificate issued by P.W.14. It is also corroborated by the postmortem certificate issued by P.W.14, the Doctor, who conducted the postmortem examination. Ex.P.6 is the postmortem certificate issued by P.W.14. In these circumstances, we are constrained to hold that the prosecution has established its case beyond reasonable doubt as against A1. 11) Coming to the nature of offence. it is contended that as admitted by P.W.15, the Inspector of Police, the occurrence had taken place due to sudden quarrel and since A1 caused one single injury on the deceased, he may be convicted only for the lesser offence and not under Section 302 IPC. This submission, in our view, does not merit acceptance for the following reasons. 12) The intention to murder the deceased could be inferred by the nature of weapon used and the part of the body on which the injury was inflicted and other circumstances attended to. In this case, there is a wordy quarrel ensued between the deceased and A1 and A2 at 7.00 p.m. on 4.9.1998. But the prosecution case is that both A1 and A2 reported the matter to P.W.4 about the words uttered by the deceased against them. According to P.W.4, he informed both accused that he will enquire the matter later and not satisfied with that, both A1 and A2 came to the scene place, A1 took out the knife and gave a stab on the vital part of the deceased which resulted in his death on the spot itself. In Ex.P.6 postmortem certificate it is mentioned as follows: External Injuries: An oblique eliptical stab wound just below right collar bone about 4.5 c.m. away from medial end of right collar bone; measuring a) about 4 c.m. by 1 c.m., and b) edges of wound clean cut. In Ex.P.6 postmortem certificate it is mentioned as follows: External Injuries: An oblique eliptical stab wound just below right collar bone about 4.5 c.m. away from medial end of right collar bone; measuring a) about 4 c.m. by 1 c.m., and b) edges of wound clean cut. On dissection the following injuries are found: 1) A cut in the underlying muscle 3.5 cm x 5 cm 2) II Rib-upper border-found partially cut 1 cm x ¼ cm 3) Right sub-clavian artery of vein found completely cut with extensive extravasation of blood in the soft tissues, 4) A cut in the upper lobe of right bony- 1 ½ cm x ½ c.m. 5) Right thoracic cavity contained about 200 ml of blood clots; 6) Direction of stab wound is downwards and backwards 7) Depth of stab wound about 7 c.m. 13) These would indicate that there is a deep injury measuring about 7 c.m. causing wound in the chest. Therefore, the injuries found on the body of the deceased would reveal that A1 intended to murder the deceased and in pursuance of the intention, he had caused the injuries which resulted in his death on the spot. Merely because there is some wordy quarrel, it cannot be said that the offence would not come under Section 302 IPC. Similarly, merely because there is one stab injury, it cannot be said that A1 has no intention to cause the murder of the deceased and as such, it would attract only for lesser offence. As has been held by the Supreme Court in STATE OF RAJASTHAN VS DHOOL SINGH ( AIR 2004 Supreme Court 1264), the number of injuries is not always the determining factor in ascertaining the intention. It is the nature of injury, the part of body where it is caused, the weapon used in causing such injury which are the indicators of the fact whether the accused caused the death of the deceased with an intention of causing death or not. 14) The relevant portion of the observation made by the Supreme Court in the above decision is as follows: ".... The number of injuries is irrelevant. It is not always the determining factor in ascertaining the intention. 14) The relevant portion of the observation made by the Supreme Court in the above decision is as follows: ".... The number of injuries is irrelevant. It is not always the determining factor in ascertaining the intention. It is the nature of injury, the part of body where it is caused, the weapon used in causing such injury which are the indicators of the fact whether the respondent caused the death of the deceased with an intention of causing death or not. In the instant case, it is true that the respondent had dealt one single blow with a sword which is a sharp edged weapon measuring about 3 ft. in length on a vital part of the body namely the neck. This act of the respondent though solitary in number had severed sternoclinoid muscle, external jugular vein, internal jugular vein and common carotid artery completely leading to almost instantaneous death. Any reasonable person with any stretch of imagination can come to the conclusion that such injury on such a vital part of the body with a sharp edged weapon would cause death. Such an injury in our opinion not only exhibits the intention of the attacker in causing the death of the victim but also the knowledge of the attacker as to the likely consequence of such attack which could be none other than causing the death of the victim..." 15) The above said observation made by the Supreme Court would squarely apply to the facts of the present case. Therefore, we are of the considered view that the conviction and sentence imposed by the trial as regards A1 are perfectly justified. 16) In fine, Crl. Appeal No.1155/2003 is dismissed, confirming the conviction and sentence imposed on the appellant/A1. The appellant/A1-Sampath is directed to surrender to his bail bond. The trial Court viz., the Additional District and Sessions Judge (Fast Track Court No.5) Chengalpattu at Tiruvallur is directed to take steps to secure the presence of A1-Sampath to undergo the remaining portion of sentence. 17) Crl. Appeal No.1063/2004 is allowed and the conviction and sentence imposed on appellant/A2-Selvam by the trial Court are set aside and he is acquitted. The fine amount, if any paid, shall be refunded to him. The bail bond executed by A2 shall stand cancelled.