Judgment :- (Criminal Appeal against the Judgment and conviction dated 23.5.2002 made in S.C.No.14 of 2002 on the file of the Fast Track Court No.3 cum Additional District and Sessions Judge, Dharapuram, Erode District.) Ar. Ramalingam,J. Appellants/A1 and A2 have been convicted under section 302 IPC and sentenced to undergo life imprisonment with fine of Rs.1000/= each by the Fast Track Court III, Dharapuram, Erode District on 23.5.2002 Challenging the said conviction and sentence, this appeal has been filed. 2. The case of prosecution before the Trial Court can be briefly narrated as under:- Originally five accused viz., Mayilsamy, Arjunan (appellants herein), Easwaran, Pappan alias Balasubramanian and Saraswathi were tried for offences under sections 147, 148 and 302 read with 149 IPC and after trial, except the appellants herein, all the other three accused were acquitted from all the charges. There was some enmity and strained relationship between the accused and the deceased Kumarasamy Gounder's family in connection with the dispute over common ridge and its eastern side cart track by way of rival claim. Whileso, on 27.6.1999, at about 4.00 pm, the 1st accused was removing stones nearby the common ridge and particularly, A2 was removing the mud with crowbar and A3 was removing the earth with spade. Thereupon, the deceased Kumarasamy and his family members protested against the removal of ridge. Immediately, thereafter, A1 Mayilsamy, attacked the deceased Kumarasamy with stones and caused injury on the head and at the same time, A2 Arjunan son of A1 attacked Kumarasamy on his head and neck on the right side with crowbar and caused injuries. This occurrence was witnessed by PW1 Seerangasamy son of the deceased, PW2 Chellammal wife of the deceased and PW3 Chinnasamy. Afterwards, the injured Kumarasamy was brought to Dharapuram Government Hospital with the help of PW6 Dhandapani through a car and treatment was given to the injured Kumarasamy by PW10 Doctor Sathyaraj and later, he referred Kumarasamy for further treatment to Coimbatore Government Hospital and then he was brought to Coimbatore Government Hospital and PW15 viz., Head Constable Ayyasamy came there on information and recorded the statement of complaint given by the injured Kumarasamy and thereafter, he registered a case in Crime No.92/99 under section 323 and 324 IPC and prepared FIR marked as Ex.P31. Thereafter, PW16, Sub Inspector of Police took up investigation and proceeded to the hospital and recovered towel from the injured Kumarasamy and also examined the injured Kumarasamy, Dhandapani Gounder and Muthusamy Gounder and that thereafter, he proceeded to the scene of occurrence, prepared observation mahazar Ex.P1, rough sketch Ex.P34, examined some witnesses and recovered M.Os. 2 and 3. Thereafter, on 18.7.1999, the injured Kumarasamy died in the hospital. Therefore, PW16, on getting information about the death of Kumarasamy, visited the Government Hospital, Coimbatore and altered the case into one under section 302 IPC and submitted for further investigation to the Inspector of Police. PW17 Inspector of Police Ganesan took up further investigation and visited the occurrence place and Government Hospital, Coimbatore, conducted inquest upon the dead body of Kumarasamy in the presence of witnesses and panchayatdars and prepared inquest report marked as Ex.P36 and made arrangements for sending the body for post mortem. PW14 viz., Ramasamy, Constable entrusted the body with the requisition for post mortem to the doctor. Consequently, PW13 viz., Dr.Ravikumar conducted post mortem and furnished post mortem report marked as Ex.P27 along with his opinion that the deceased would have died due to multiple injuries and its complications sustained by him. Then PW17 examined some more witnesses like Dr.Ganesh Babu, Dr.Ravikumar, Dr.Nanjundappan and then on 21.7.1999 he arrested A1 to A4 and recorded confessional statement of A3 and in pursuance of that confessional statement, he recovered the crowbar marked as M.O.1 in the presence of the Village Administrative Officer PW7 and another and remanded the accused for judicial custody and then gave requisition to the Magistrate for sending the recovered M.Os. to the Chemical Analyst and then after obtaining the Chemical Analyst report marked as Exs.P14 and serologist report marked as Ex.P15 and completing the investigation, filed charge sheet against the accused. After filing final charge sheet, referred the complaint given by A5, registered as crime No.91 of 1999, as mistake of fact. 3. The Trial Court, after examining 17 witnesses, marking 39 Exhibits and 7 M.O.s and questioning the accused under section 313 Cr.P.C. and recording the total denial of their complicity in the occurrence, convicted the appellants herein under section 302 IPC and acquitted the other accused. 4. 3. The Trial Court, after examining 17 witnesses, marking 39 Exhibits and 7 M.O.s and questioning the accused under section 313 Cr.P.C. and recording the total denial of their complicity in the occurrence, convicted the appellants herein under section 302 IPC and acquitted the other accused. 4. Learned counsel appearing for the appellants, after taking us through the entire evidence and available materials, submitted that P.Ws.1 to 3 shown as eyewitnesses are all belonging to one family and therefore, insisted as if their version cannot be believed and that further FIR has been given belatedly and it has been despatched to the Magistrate belatedly and that further A5 sustained injury in the same occurrence because of the aggressive attitude of the witnesses and such injury is not explained and the complaint given by A5 has not been properly investigated and disposed and thereby the genesis of the occurrence itself is highly doubtful and the real first aggressors are only witness parties and not the accused and that further, Kumarasamy died nearly after 18 days in the hospital and reasons for his death may be various ones and it cannot be construed that injury should be the direct and proximate cause for his death and thereby section 302 IPC cannot be invoked and thereby the appellants are liable to be acquitted. On these aspects, we have heard the Additional Public Prosecutor. 5. The learned Additional Public Prosecutor in turn submitted that the counter complaint given by A5 has been enquired and referred to as mistake of fact and P.Ws.1 to 3 have explained the injury sustained by A5 and the circumstances under which A5 sustained injury. The evidence of the Village Administrative Officer and his certificate marked as Ex.P7 goes to show that the witness parties are not aggressors and instead only the accused parties are aggressors by making damage or encroachment upon the common ridge and thereby the conviction against the appellants has to be sustained. 6. The evidence of the Village Administrative Officer and his certificate marked as Ex.P7 goes to show that the witness parties are not aggressors and instead only the accused parties are aggressors by making damage or encroachment upon the common ridge and thereby the conviction against the appellants has to be sustained. 6. Regarding the first submission, it is to be noted that PW1 Seerangasamy son of the deceased, PW2 Chellammal wife of the deceased and PW3 a relative of the deceased have categorically given evidence to the effect that A1 Mayilsamy attacked the deceased Kumarasamy with stones and caused injuries upon his head and that A2 Arjunan attacked the deceased with crowbar and caused injuries on his right ear and their evidence is cogent without room for any doubt or improbabilities. Therefore, simply because they are relatives, their evidence, as such, cannot be construed as improbable and unbelievable. On the other hand, the post mortem report furnished by Doctor PW13 viz., Ravikumar shows two external injuries viz., "1. A vertically oblique sutured lacerated injury with partially adherent margins seen behind the right ear on the mastoid region 4 cms x 2 cms bone deep. Upper posterior end is 1 cm above right mastoid process lower anterior end is 1 cm posterior to lower end of right ear. 2. A lacerated partially healing wound on the pinna of right ear 0.5 cm x 0.5 cm x entire thickness at middle part of right ear." among other internal injuries and that death occurred due to multiple injuries and its complications sustained by the deceased. Further, injuries 1 to 3 found are relating to internal injuries and those injuries are capable of causing death and the first external injury could be caused by crowbar and all the injuries cumulatively are capable of causing death in course of time. Therefore, because of those injuries caused by the weapons used by A1 and A2 and other accused death had occurred. Following that the evidence of P.Ws.1 to 3 as eyewitnesses cannot be ignored only for the reason that they are relatives to the deceased. Hence, the first submission of the learned counsel appearing for the appellants deserves to be rejected. 7. Following that the evidence of P.Ws.1 to 3 as eyewitnesses cannot be ignored only for the reason that they are relatives to the deceased. Hence, the first submission of the learned counsel appearing for the appellants deserves to be rejected. 7. Regarding the next submission about the delay in preferring FIR and despatch, etc., we are not convinced that there is unexplained or undue delay in FIR and its despatch to the Magistrate in a way to suspect the very truth of the occurrence. It is more so when such delay was not intended to implicate falsely persons who are not concerned with the occurrence. Accordingly, this submission also deserves to be rejected. 8. Regarding the next submission that during the course of occurrence, A5 sustained injury and such injury has not been explained by the prosecution and even though a case has been registered based upon the statement of A5, that case has not been properly investigated and the investigation officer has chosen to refer the case as mistake of fact which is not proper and correct inasmuch as the aggressors are only witness parties, we are able to see that the injury sustained by A5 has been spoken by P.Ws.1 to 3 who are eyewitnesses and they have explained that while A3 was attacking the deceased Kumarasamy, A5 came across to rescue and the blow given by A3 fell upon A5. The Investigation Officer also after completing the investigation of this case as well as the complaint given by A5 has come to the conclusion that A5 happened to sustain injury only because of the blow given by A3 when A5 intervened and the accused parties alone are aggressors and so the complaint given by A5 has been referred as mistake of fact. Taking note of the evidence and other materials in the light of over all circumstances of this case, we are of the view that this submission also cannot be sustained inasmuch as there is no force and basis in this submission. Consequently, this submission also deserves to be rejected. Moreover, on facts, the accused party alone appear to have damaged the common ridge by making use of crow bar, spade, etc. to the detriment of the land of the deceased and when protest was made by the deceased Kumarasamy against such conduct of the accused party, this occurrence followed. Consequently, this submission also deserves to be rejected. Moreover, on facts, the accused party alone appear to have damaged the common ridge by making use of crow bar, spade, etc. to the detriment of the land of the deceased and when protest was made by the deceased Kumarasamy against such conduct of the accused party, this occurrence followed. Therefore, the accused party alone can be construed as aggressors and in any event, the witness party cannot be construed as aggressors. Therefore, this submission also deserves to be rejected. 9. Regarding the submission that section 302 IPC is not made out inasmuch as there is no intention or pre-determination on the part of the accused party and particularly the appellants herein to murder the deceased Kumarasamy, we are able to see from the evidence and other materials available in this case that there is no intention or pre-determination on the part of the appellants to murder Kumarasamy. In other words, the occurrence itself, in our view, has occurred only in pursuance of the protest and consequent wordy quarrel suddenly and out of heat of passion and that if really there was intention and pre-determination for the accused party to murder Kumarasamy or some other witness, the accused party would have been prepared with dangerous and sharp edged weapons like Aruval, knife, etc., and they would not have chosen 4.00 pm for the occurrence. Therefore, in such circumstances, we are of the view that offence under section 302 cannot be made out and instead section 304 Part II IPC alone is made out and both the accused are liable for offence under section 304 Part II read with 34 IPC. Accordingly, all the submissions otherwise made by the learned counsel appearing for the appellants are not sustainable. 10. In the result, the criminal appeal is allowed in part. The conviction of the appellants under section 302 IPC is set aside and instead, they are found guilty for having committed offence under section 304 Part II read with 34 IPC and accordingly, convicted under section 304 Part II read with 34 IPC and sentenced each to undergo rigorous imprisonment for a period of four years. The sentence of fine imposed by the Trial Court is confirmed. The Trial Court is directed to secure the custody of the appellants to enable them to undergo the remaining period of sentence.