Judgment :- (Criminal Appeal filed under Section 374 of Criminal Procedure Code against the judgment of conviction dated 31.7.1997 passed in S.C.No.51 of 1993 on the file of the Second Additional Sessions Court, Pondicherry, convicting the appellants.) The appellants are the accused 1 and 3 to 5 in S.C.No.51 of 1993 on the file of the Second Additional Sessions Court, Pondicherry. The appeal is filed against the conviction and sentence imposed on A1 to undergo rigorous imprisonment for three years for the offence under Section 304 Part-II, IPC and to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for two months under Section 323 I.P.C. and A3 to A5 each to undergo rigorous imprisonment for one year and to pay fine of Rs.1,000/- each, in default to undergo rigorous imprisonment for two months each under Section 323 I.P.C. as per the judgment dated 31.7.1997. 2. The brief facts that led to the filing of this appeal are as follows:- “(a) P.W.1 is the father of the deceased Shanmugham and sister’ s-in-law husband of P.W.2. P.W.3 is the sister of P.W.2. P.W.4 is the daughter of P.W.3 and step daughter of P.W.2. A1 and A4 are brothers and sons of Sinnarasu. A2, A3 and A6 are brothers and sons of Periasamy. (b) As per the case of prosecution, the occurrence took place on 19.6.1992 at 9.30 p.m. in New Colony, Sedarapet. P.Ws.1 to 3, 6, 12 and 15 and Lingasamy, who is the father of P.W.4 went to the grocery shop of A1 seeking explanation about A1 dashing P.W.4 in cycle when she was returning along with her husband Kannan and P.W.12, Unnamalai, because of which she fell down on the road. A2 to A6 were also present at that time. A2 instigated A1 and A3 to A6 to beat them. The overt act by A1 to A6 are as follows:- “(1) A1 assaulted P.W.1 with stick on his head and left shoulder. P.W.1 fell down. A1 attacked P.W.5 on his head with stick. P.W.5 sustained bleeding injuries at the hands of A1. (2) A2 hit P.W.1 with stone and kicked him on his hip. (3) A4 attacked P.W.2 with stick on her head. A4 attacked P.W.3 with stone on her both hands and thigh. A4 also attacked P.W.4 with stone on her right little finger on her leg. P.W.5 sustained bleeding injuries at the hands of A1. (2) A2 hit P.W.1 with stone and kicked him on his hip. (3) A4 attacked P.W.2 with stick on her head. A4 attacked P.W.3 with stone on her both hands and thigh. A4 also attacked P.W.4 with stone on her right little finger on her leg. A4 attacked P.W.6 on her head. (4) A5 kicked P.W.2 on her stomach. A5 also attacked P.W.5 with stone. (5) All the accused surrounded P.Ws.1 to 6. (6) When P.W.1’ s son, the deceased Shanmugam intervened and tried to rescue P.W.1, A1 beat the deceased Shanmugam and he fell down. All the accused surrounded the deceased Shanmugam and stampede the deceased.” (c) All the injured left the scene of occurrence and went to the Jipmer Hospital, Pondicherry. The deceased Shanmugam was not taken to hospital and was lying near the fence throughout the night. On 22.6.1992, P.W.11 Madurambal found the deceased inside the fence of her house and informed to P.W.10 Sarangapani. Thereafter, the deceased Shanmugam, was taken to the Jipmer Hospital, Pondicherry, where he was declared dead at 9.00 a.m. and intimation was sent to the Katterikuppam Police Station. (d) On receipt of information, P.W.16, the then Sub Inspector of Police, Katterikuppam Police Station went to the Jipmer Hospital and on receiving the complaint Ex.P-1 from P.W.1 he registered the same in Crime No.53 of 1992 under Sections 147, 148, 302, 325, 323 read with 149 I.P.C. The printed F.I.R. is Ex.P-6 and sent the same to all higher officials. (e) Investigation was taken up by P.W.17, the then Inspector of Police, Thirukkanur Circle, Pondicherry, who on arrival of scene of occurrence prepared rough sketch Ex.P-7 and observation mahazar Ex.P-8. He made arrangement to take photographs through P.W.15 Police Photographer. P.W.17 recovered the sticks (M.Os.1 to 4) from the scene of occurrence. He conducted inquest over the body of the deceased and Ex.P-10 is the inquest report. The body was sent to the post-mortem through Head Constable P.W.14. P.W.17 examined the witnesses and recorded their statements. P.W.17 arrested A1 and A3 to A5 at 11.00 a.m. on 22.6.1992 at Karasur. He sent all the documents and material objects to the Court and after completion of investigation filed the final report.” 3. To prove the case, the prosecution examined P.Ws.1 to 17 and marked Exs.P-1 to P-22 and M.Os.1 to 7. P.W.17 arrested A1 and A3 to A5 at 11.00 a.m. on 22.6.1992 at Karasur. He sent all the documents and material objects to the Court and after completion of investigation filed the final report.” 3. To prove the case, the prosecution examined P.Ws.1 to 17 and marked Exs.P-1 to P-22 and M.Os.1 to 7. As against such evidence, the accused though not let in oral evidence, marked Exs.D-1 and D-2, viz., the brief summary of the case-sheet regarding the deceased Shanmugham produced by P.W.7 as Ex.D-1 and General Diary of Katterikuppam Police Station, Pondicherry, for the period from 18.6.1992 to 28.6.1992 produced by P.W.16 as Ex.D-2. 4. When the accused were questioned under Section 313 of the Code of Criminal Procedure, on the basis of the incriminating evidence made available against them by the respondent, they denied the offence and stated that false case has been foisted against them. 5. In considering such evidence, the Sessions Court acquitted A2 and A6 in respect of all the charges and further on finding that A1 is guilty under Sections 304 Part-II and 323 I.P.C. and A3 to A5 under Section 323 I.P.C., convicted and sentenced as set out above, which are challenged in this appeal by A1 and A3 to A5. 6. Heard the learned counsel for the appellants and the learned counsel representing the Public Prosecutor (Pondicherry). 7. It is reported that during the pendency of this appeal A3 panneer died. 8. The learned counsel for the appellants contended that the witnesses examined on the side of prosecution are all interested witnesses and therefore, much reliance cannot be placed on them. As regards the complaint Ex.P-1 said to have been made by P.W.1, it is submitted that only after due deliberations, the same has been lodged and therefore, no reliance can be placed in proving the case of prosecution in respect of the accused. In this regard, it is also submitted that inasmuch as A2 and A6 have been acquitted in respect of all charges levelled against them, the conviction of A1 under Sections 304 Part-II and 323 I.P.C. and A3 to A6 under Section 323 I.P.C. on the very same evidence, is not proper. The learned counsel also argued that the medical evidence does not tally with the ocular witness. The learned counsel also argued that the medical evidence does not tally with the ocular witness. As regards the injuries to A1, it is not satisfactorily explained and inasmuch as, as per the case of prosecution, the occurrence took place in the busy locality, the non-examination of independent witness according to the learned counsel is fatal to the case of prosecution. 9. The learned counsel representing the Public Prosecutor (Pondicherry) argued that the Sessions Court considering and accepting the evidence let in on the side of prosecution and more particularly through P.Ws.1 to 6, who are also injured witnesses and the fact that such evidence tallies with F.I.R. and medical evidence, rightly found A1 is guilty under Sections 304 Part-II and 323 I.P.C. and A3 to A5 under Section 323 I.P.C. 10. As per the case of prosecution, the occurrence took place on 19.6.1992 at 9.30 p.m. in New Colony, Sedarapet. It was reported by P.W.1, the father of the deceased Shanmugam, on 20.6.1992 at 9.00 a.m. as per the complaint made under Ex.P-1 to P.W.16, Sub Inspector of Police in Jipmer Hospital, Pondicherry where he was taking treatment for the injuries sustained by him in the occurrence. In the complaint Ex.P-1 it is stated that instigated by A2 not to leave P.Ws.1 to 3, 6, 12 and 15 and Lingasamy, who is the father of P.W.4, A1 and A3 to A6 each took casuarina sticks from nearby tea stall and attacked as follows:- “(1) Annadurai/A1 beat P.W.1 with casuarina stick on his head. P.W.1 fell down. Then A1 attacked on his left shoulder. (2) Panneer/A3 kicked P.W.1 on his hip and also beat him with a stone. P.W.1 was sitting unable to move in view of the attack made to him. (3) Kannan/A4 attacked P.W.2 Govindammal on her head with stick. (4) Pandian/A5 kicked P.W.2 Govindammal on her stomach. (5) A1 and A3 to A5 beat P.W.3, Anjalai, P.W.5 Arumugham and P.W.6 Ananthi with sticks and stones. (6) On hearing the incident, P.W.1’ s son Shanmugam came and intervened and he was attacked by A1 to A6 with sticks and stones on his chest and back indiscriminately.” The injured through the casuarina thope came to the road and to Jipmer hospital in the bus. P.W.1 was taking treatment in the hospital. (6) On hearing the incident, P.W.1’ s son Shanmugam came and intervened and he was attacked by A1 to A6 with sticks and stones on his chest and back indiscriminately.” The injured through the casuarina thope came to the road and to Jipmer hospital in the bus. P.W.1 was taking treatment in the hospital. P.W.1 came to know that P.W.11 Madurambal belonging to the colony gave water to his deceased son, who was injured and kept in her house and then on 20.6.1992 at 5.00 a.m., his younger brother P.W.10 Sarangapani, Jothi and Nagappan took his son in tyre cart brought to the road from where he was taken in the bus near the hospital and from which place his younger brother P.W.10 Sarangapani took him on his shoulder and admitted him in Jipmer hospital where he was declared dead and therefore there have been delay in making the said complaint. 11. P.W.1 Krishnan, has stated in his evidence that Annadurai/A1 struck a blow on his head with a casuarina stick which he had in his hand. Annadurai/A1 also struck him with the same stick on his left shoulder and he fell down. Then Panneer/A3 hit him with a stone and kicked him on the hip. P.W.1 has also stated that S.Kannan/A4 struck a blow on the head of Govindammal(P.W.2) with another casuarina stick. All the six accused circled round, P.Ws.1 to 3 and one Lingasamy and started beating with stick. At that time P.W.1’ s son Shanmugam came to the spot. Annadurai/A1 beat Shanmugam with a stick and on his falling to the ground all the six accused got over him and kicked him and thrashed and stamped him by their foot. 12. P.W.2 Govindammal has stated in her evidence that Annadurai/A1 beat P.W.1 Krishnan on her head and left shoulder, that Panneer/A3 beat P.W.1 with a stone on his hip and kicked on the hip, that S.Kannan/A4 beat P.W.2 with a stick on her head and Pandian/A5 kicked on P.W.2 on her stomach and that all the other accused circled round out and started beating with sticks. She also stated that Shanmugam was beaten by all the accused on his head and he fell down. Then all the accused got over him and ploughed him with their leg. 13. She also stated that Shanmugam was beaten by all the accused on his head and he fell down. Then all the accused got over him and ploughed him with their leg. 13. P.W.3 Anjalai has stated in her evidence that Annadurai/A1 struck a blow on the head of P.W.1 Krishnan with a casuarina stick. P.W.1 fell down and Annadurai/A1 struck him again on the left shoulder of P.W.1. Panneer/A3 kicked P.W.1 on his hip. S.Kannan/A4 struck P.W.3 with a stone on both the hands and on her thigh. Annadurai/A1 struck Shanmugam with a stick on his head, the blow on Shanmugam was inflicted when he stoop down to lift his father who was lying down with injuries. On getting the blow Shanmugam fell down whereupon all the accused got over Shanmugam and thrashed him all over the body by their legs. 14. P.W.4, Vinodhini in her evidence has stated that S.Kannan/A4 beat her with a stone on her right little finger of the leg. She saw A1 to A4 and A6 attacking her relatives. Annadurai and his group attacked her uncle Shanmugam. 15. P.W.5 Arumugam in his evidence has stated that Annadurai/A1 beat him on his head by a stick because of which he sustained bleeding injury. He also stated that Pandian/A5 struck him with a stone on his back and that he saw Annadurai and four persons thrashing Shanmugam, who had fallen down, by their foot. 16. P.W.6 Ananthi has stated in her evidence that P.W.1 Krishnan was beat by Annadurai/A1 with a stick on his head and on his falling to the ground P.W.1 was again beaten by Annadurai/A1 on his left shoulder. P.W.1 was also beaten by Kannan/A4. Lingasamy, Anjalai(P.W.3), Govindammal(P.W.2), Arumugam(P.W.5) were beaten by A2 to A5 on their heads and body portions with sticks. She has also stated that Shanmugam was beaten first by Annadurai/A1 with stick and then by all other accused. The accused also thrashed and trampled the body of the Shanmugham when he fell down and when she intervened, S.Kannan/A4 struck her on the head with a stick. She sustained bleeding injury. 17. Doctor K.N.Reddy, attached to Jipmer Hospital, Pondicherry, who was not examined, issued wound certificates Exs.P-18, P-21, P-20 and P-19 to P.Ws.1 to 3 and 5 respectively. In Ex.P-18, it is stated that Dr.K.N.Reddy examined P.W.1 Krishnan and he found the following injuries:- “Injuries:- 1. She sustained bleeding injury. 17. Doctor K.N.Reddy, attached to Jipmer Hospital, Pondicherry, who was not examined, issued wound certificates Exs.P-18, P-21, P-20 and P-19 to P.Ws.1 to 3 and 5 respectively. In Ex.P-18, it is stated that Dr.K.N.Reddy examined P.W.1 Krishnan and he found the following injuries:- “Injuries:- 1. Lacerated injury 7 x 1 c.m. top of head midline. 2. Contusion with 6 x 6 c.m. Tenderness present. Circular area with deformity. Abrasion 3 x 1 c.m. 3. Tenderness right wrist with haematoma 2 x 2 c.m. Palmar aspect of right Palm. Type of injuries: GRIEVOUS I mp – Fracture of left clavicle.” In Ex.P-19, it is stated that Dr.K.N.Reddy examined P.W.5 Arumugam and he found the following injuries:- “Injuries:- 1) Lacerated injury left forehead, 6 x 1 cm. 2) Abrasions over the left knee 3 x 4 cm. ....... Type of injuries : Simple” In Ex.P-20, it is stated that Dr.K.N.Reddy examined P.W.3 Anjalai and he found the following injuries:- “Injuries:- 1. Contusion with tenderness right forearm 5 x 5 c.m. 2. Abrasions left elbow 2 x 2 c.ms. 3. Contusion with tenderness left lower thigh, 5 x 3 c.ms. ..... Type of injuries: GRIEVOUS” In Ex.P-21, it is stated that Dr.K.N.Reddy examined P.W.2 Govindammal and he found the following injuries: “Injuries:- 1. Lacerated injury left parietal area 4 x 1 cms .... Type of injury: SIMPLE” P.Ws.1 to 3 and 6 informed the doctor that they have been assaulted by 5 known persons at the time of occurrence on 19.6.1992 at 9.00 p.m. near Sadharapet. 18. P.W.8, Doctor G.M.Ramana, attached to Jipmer Hospital, Pondicherry, examined P.W.6 Ananthi and he found the following injuries:- “Injuries: 1. (NC)(torn) x 1 cm laceration to the left of midline anteriorly over scalp. 2. 3 x 2 c.m. abrasion over left forearm. Imp. Assault injury” He issued Ex.P-3 wound certificate. P.W.6 informed the doctor P.W.8 that she has been assaulted by 5 known persons at the time of occurrence on 19.6.1992 at 9.00 p.m. near Sadharapet. 19. (NC)(torn) x 1 cm laceration to the left of midline anteriorly over scalp. 2. 3 x 2 c.m. abrasion over left forearm. Imp. Assault injury” He issued Ex.P-3 wound certificate. P.W.6 informed the doctor P.W.8 that she has been assaulted by 5 known persons at the time of occurrence on 19.6.1992 at 9.00 p.m. near Sadharapet. 19. P.W.7, Dr.S.M.Sharif, Professor and Head of the Department of Forensic Medicine conducted the post-mortem on the body of the deceased Shanmugham and he found the following injuries on the body of the deceased:- “Injuries (Antemortem): “There is a diffuse contusion present in the scalp over the left temporo-occipital region over an area of 15 cm x 6 cm” Internal Examination Head (Scalp, skull, brain, meninges and blood vessels) (Brain:M:1400 gms/ F:1275 gms): Scalp: Pericranial hematoma present over the left temporo-occipital region in the form of fluid and clotted blood ½ cm thick. Skull: A fissure fracture extending from the posterior border of left temporal bone on to the right occipital bone, situated transversely 18 cm cm long, involving the entire thickness of skull bone. Brain: A laceration present over the middle of left temporal region roughly in its middle 4 cm x 2 cm x ¼ cm in size. Subdural hemorrhage in the form of clotted and fluid blood ¼ cm thick, present over left temporal-parietal and occipital region. Subarachnoid hemorrhage present over the temporo-parietal and occipital region of left cerebral hemi-sphere, mostly on its upper surface.” P.W.7, issued post-mortem certificate Ex.P-2. He has opined that the deceased would appear to have died due to Asphyxia as a result of Regurgitation of food material in to air passages (Larynx, trachea and Bronchi) associated with Head injury. He has also stated in his evidence that the death can be caused as a cumulative of asphyxia and head injury. 20. Therefore it is clear from the evidence of P.Ws.2, 4, 5 and 6, the injured and P.W.7 Doctor and the wound certificates Exs.P-19, P-21 and P-3 relating to P.Ws.5, 2 and 6 that due to assault made by A1 and A3 to A5, the injuries noted in Exs.P-19, P-21 and P-3 have been caused as stated by P.Ws.2, 4, 5 and 6 and that the trial Court considering these aspects rightly found A1 and A3 to A5 guilty in respect of the offence under Section 323 I.P.C. 21. It is also clear from the evidence of P.Ws.1 and 3 that at the time of occurrence A1 caused grievous injuries to them as noted in the wound certificates Exs.P-18 and P-20. Further A1 also assaulted the deceased with casuarina sticks and caused grievous injuries as noted in the post-mortem certificate Ex.P-2, viz., fissure fracture in the skull and laceration on the left temporal region. Therefore, inasmuch as A1 attacked P.Ws.1 and 3 and also the deceased with casuarina sticks and caused grievous injuries to them as noted in the wound certificates Ex.P-18 and P-20 and also in the post-mortem certificate Ex.P-2 and as such, the offence under Section 325 I.P.C. only is made out for causing grievous injuries to P.Ws.1 and 3 and also the deceased besides under Section 323 I.P.C. for causing simple injuries to P.Ws.2, 5 and 6 as noted in the wound certificates Ex.P-19, P-21 and P-3. The post-mortem doctor P.W.7 has opined that the deceased would appear to have died due to Asphyxia as a result of Regurgitation of food material in to air passages(Larynx, trachea and Bronchi) associated with Head injury and therefore, the assault made by A1 to the deceased at the time of occurrence with stick cannot be the cause for the death of the deceased. Accordingly, the finding of the trial Court that A1 is guilty for the offence under Section 304 Part-II IPC is incorrect and instead A1 is guilty only under Section 325 IPC. 22. In the result, the Criminal Appeal is partly allowed as follows:- (1) The conviction and sentence awarded by the trial Court as per the judgment dated 31.7.1997 made in S.C.No.51 of 1993 in respect of A1 is modified to that of one year rigorous imprisonment for the offence under Section 325 I.P.C. instead of three years rigorous imprisonment under Section 304 Part-II IPC. (2) The conviction of the trial Court in respect of the offence under Section 323 I.P.C. is confirmed and the sentence awarded for the offence under Section 323 I.P.C. is modified to that of six months rigorous imprisonment instead of one year rigorous imprisonment in respect of A1, A4 and A5. (3) The fine imposed by the trial Court is confirmed. (4) Since, during the pendency of the appeal, A3 died, the appeal in respect of A3 is dismissed as abated. (3) The fine imposed by the trial Court is confirmed. (4) Since, during the pendency of the appeal, A3 died, the appeal in respect of A3 is dismissed as abated. (5) The bail bonds executed by A1, A4 and A5 are cancelled and the Second Additional Sessions Judge, Pondicherry is directed to secure the custody of A1, A4 and A5 to undergo the remaining period of sentence. (6) The period of sentence, if any, already undergone, is ordered to be set off under Section 428 of the Code of Criminal Procedure.