Judgment :- (Criminal Appeal against the Judgment and conviction dated 18.2.2002 made in S.C.No.344 of 1997 on the file of the Principal Sessions Judge, Chingleput.) A.R. Ramalingam, J. Appellants/A1 to A3 have filed this appeal against their conviction and sentence to undergo life imprisonment under section 302 IPC (against A1 to A3), to undergo one year rigorous imprisonment under section 324 IPC (against A2) and to undergo five years rigorous imprisonment for with fine of Rs.500/- under section 326 IPC (against A3). 2. Brief facts behind this appeal can be narrated as follows:- Appellants are sons of one Kuthoos Basha (A4 before the Trial Court). They are residing at Pudhupattinam within the jurisdiction of Kalpakkam Police Station. PW1 Abubucker, PW2 Mohammed Ali and PW3 Abdul Jafar are also residing at the same Pudhupattinam. PW4 Sheik Dawood is the Aunt’s son of P.Ws. 1 to 3. He is also residing at Pudhupattinam. The deceased Sheik Ali is also a brother of P.Ws.1 to 3. 3. On 11.6.1997 at about 1.30 pm, A2 and A4 and another Sadhik Basha demanded auto-rickshaw for hire from Samsuddin who is another brother of P.Ws.1 to 3. The said Samsuddin refused to come and so, A2 and A4 and another abused him in filthy language. At the same time, PW1 came there and on hearing the filthy language, he got angry and pushed down A2 Mohammed Unis. Immediately, A2 retaliated by attacking PW1 with chappal and shouted that he would finish off PW1’s family with dire consequences. Thereafter, PW1 reported the dispute to the Jamath and the Jamath people replied that the matter would be enquired in the evening. Subsequently, on the same day, viz., on 11.6.1997 at about 6.00 pm, PW1 went to the house of his sister Fathima and found that A2 and A3 armed with knives and A4, and another accused viz., Khan who is absconding, armed with an iron rod and shouting that they would finish the entire family of PW1. PW1 requested them to solve the dispute through the Jamath. Whileso, the sister of PW1 Fathima informed her husband viz., Kaja Mohideen and her brother viz., the deceased Sheik Ali about the threat made by the accused persons over phone. PW1 requested them to solve the dispute through the Jamath. Whileso, the sister of PW1 Fathima informed her husband viz., Kaja Mohideen and her brother viz., the deceased Sheik Ali about the threat made by the accused persons over phone. Thereupon, on hearing the threat of the accused persons, PW2 viz., Mohammed Ali and the deceased Sheik Ali rushed to the house of Fathima in TVS 50 moped and it was driven by the deceased Sheik Ali. On seeing the deceased Sheik Ali and PW2 in front of the house of A4 Kuthus Basha, A1 viz., Jafer Ali drove the Mahindra van rashly with the intention to hit Sheik Ali and somehow the deceased tried to escape, but, however, he was hit by the Mahindra van. But, at the same time, PW2 managed to escape by jumping from the motorcycle. At the same time, PW3 viz., Abdul Jaffer along with Kaja Mohideen came to the spot in another motorcycle and witnessed the occurrence. Because of the hit made by the van, Sheik Ali was caught under the left rear wheel of the van and also A1 took the van in reverse direction and again hit the deceased and caused injuries. Further, A2 attacked PW4 Sheik Dawood with knife and caused injuries on his left hand. The absconding accused Khan also cut both the legs of PW4 and caused injuries. Further, while A3 Mohammed Kasim alias Kasim came running to attack PW1. PW1 was able to snatch the knife from A3 and attack A1, A2 and A4 who all were trying to attack PW1. On seeing the said occurrence, public gathered and broke the glasses of Mahindra van and the accused persons ran away from the scene of occurrence. Subsequently, PW1 sent the deceased Sheik Ali along with Sheik Dawood, PW4 to Chingleput Government Hospital where PW8 viz., Dr.Chandramouleeswaran declared that Sheik Ali is dead and also gave treatment to PW4 and furnished Ex.P7 accident register copy. The same doctor also on the same day, gave treatment to A1, A3 and A4 and furnished Accident Register copies marked as Exs.P3, P4 and P5. A2 who was not injured in the occurrence went to the bazaar and threatened the shoppers to close their shops. So, out of fear, PW1 was staying in the house of his sister Fathima. The same doctor also on the same day, gave treatment to A1, A3 and A4 and furnished Accident Register copies marked as Exs.P3, P4 and P5. A2 who was not injured in the occurrence went to the bazaar and threatened the shoppers to close their shops. So, out of fear, PW1 was staying in the house of his sister Fathima. Thereafter, at about 9.00 pm, PW1 got information through phone that Sheik Ali was declared dead and then he went to the police station and preferred the complaint marked as Ex.P1 to PW15 viz., Head Constable Sathiyadoss. On receipt of Ex.P1, PW15 registered this case in Crime No.159 of 1997 and prepared printed FIR viz., ex.P14 and sent the same to the Judicial Magistrate and higher police officials. 4. On receipt of Exs.P1 and P14, the Inspector of Police PW16, viz., Sundarrajan, on 12.6.199 at about 1.00 am, proceeded to the scene of occurrence and examined P.Ws.1, 2 and 3 and Kaja Mohideen at 6.30 am and prepared ex.P2 observation mahazar and Ex.P15 rough sketch in the presence of PW6 and another and subsequently, at about 7.00 am, recovered M.O.3 Mahindra Van, M.O.5 TVS 50 moped by preparing mahazar, Ex.P16 and he also recovered M.O.9 broken glass pieces. In the meanwhile, at about 5.15 am on 12.6.1997, on information from Chingleput Town Police Station through phone, PW15 Sathyadoss visited the Chingleput Hospital and recorded the statement of A3 who was there as inpatient and registered a case in Crime No.160 of 1997 under sections 147, 148, 324 and 326 IPC and sent the FIR copies to the higher officials. Thereafter, PW16 continued his investigation upon the said FIR in Crime No.160 of 1997 also and conducted inquest upon the body of the deceased Sheik Ali in the presence of panchayatdars and P.Ws.1 and 3 and one Kaja Mohideen and prepared inquest report marked as Ex.P17 and sent the dead body for post mortem with a requisition Ex.P9 through PW14 Abdul Khader. PW10 viz., Dr.Yogam conducted post mortem at about 12.00 noon on 12.6.1997 and found nine injuries and furnished the post mortem report marked as Ex.P10 with opinion that the said Sheik Ali would have died due to multiple organ injuries. PW10 viz., Dr.Yogam conducted post mortem at about 12.00 noon on 12.6.1997 and found nine injuries and furnished the post mortem report marked as Ex.P10 with opinion that the said Sheik Ali would have died due to multiple organ injuries. Thereafter, PW16, in continuation of his investigation, arrested A2 on 13.6.1999 along with the absconding accused and recorded the confessional statement given by A2 and recovered M.Os.5 and 6 by preparing mahazar Ex.P13 and remanded them for judicial custody. Subsequently, on 14.6.1997, PW16 arrested A1, A3 and A4 at the hospital and remanded them for judicial custody. Thereafter, one Chidambaram, Inspector of Police took up further investigation and examined the doctors P.Ws.8 to 10. PW16 Inspector of Police also sent a requisition letter Ex.P9 to the Magistrate for sending the material objects for chemical examination and after receipt of chemical analysis report marked as Ex.P21, serology report marked as Ex.P22, and Motor Vehicle Inspector’s report marked as Ex.P11, completed the investigation in this case as well as the counter case in Crime No.160 of 1997 and found that Crime No.160 of 1997 is wrong, filed charge sheet against the accused. 5. Before the Trial Court, totally 16 witnesses have been examined, 22 Exhibits have been marked apart from 2 court Exhibits as C1 and C2 and 9 material objects were marked. The accused, under section 313 Cr.P.C., have totally denied their complicity in the offence. After analysing the evidence, the Trial Court has found the appellants guilty and convicted and sentenced them. 6. Mr.Sriramulu, learned Senior Counsel appearing for the first appellant and Mr.Balaguru, learned counsel appearing for appellants 2 and 3 mainly submitted that there are various infirmities in the case of prosecution and the injuries upon the accused have not been explained by the prosecution properly and the counter case has not been investigated properly by the investigation officer and all the eyewitnesses are closely related to each other and they are interested in the prosecution party and benefit of doubt should be given to the accused and thereby the appellants are liable to be acquitted. We have heard the Additional Public Prosecutor on these aspects. 7. We have heard the Additional Public Prosecutor on these aspects. 7. On going through the evidence of PW1 Abubucker, PW2 Mohammed Ali, PW3 Abdul Jaffar, PW4 Sheik Dawood and PW5 Tmt.Meharunnisha carefully, we are able to see that all these five witnesses have categorically and cogently given evidence to the effect that on 11.6.1997 at about 1.30 pm, there was an incident to the effect that all the accused demanded one Samsudin for providing his auto-rickshaw for hire and Samsudin refused to oblige and aggrieved against such refusal, the accused scolded the said Samsudin in filthy language and when it was heard by PW1, he got angry and pushed A2 Mohammed Unis by putting his hands upon his face and consequently, aggrieved against such pushing, A2 beat PW1 with chappal and also shouted as if he would do away with all the family members of PW1 and that PW1 referred this incident to the Jamath and Jamath people replied that the matter would be enquired in the evening. 8. Further, on the same day at about 6.00 pm, the appellants herein as well as other accused assembled near the house of PW1’s sister Fathima armed with deadly weapons like knives, iron rod, etc., and proclaimed as if they would kill all the members of PW1’s family and Fathima. PW1 requested those accused as not to shout and the matter can be resolved through Jamath. In the meanwhile, his sister Fathima gave information to her husband Kaja Mohideen and the deceased Sheik Ali through phone about the shouting of the accused. Consequently, the deceased Sheik Ali along with his brother PW2 Mohammed Ali came in a TVS 50 moped towards Fathima’s house. On seeing the deceased Sheik Ali in front of the house of A4 Kuthus Basha, A1 Jaffar Ali drove one Mahindra Van rashly in order to hit upon Sheik Ali and inspite of his effort to escape, the van hit upon the TVS 50 moped and before that the pillion rider PW2 jumped and escaped and Sheik Ali fell down and caught under the wheel of the van and A1 took the van in reverse and again hit upon Sheik Ali and caused injuries and Sheik Ali became serious. At the same time, PW3, Abdul Jaffar along with Fathima’s husband Kaja Mohideen came there in another motorcycle and immediately on seeing him, A2 Mohammed Unis attacked him with knife and caused injury on his left hand and at the same time, A2, Mohammed Unis also attacked PW4 Sheik Dawood with knife upon the left hand and the absconding accused Khan also attacked on the legs of Sheik Dawood and at the same time, while A3 Mohammed Kasim rushed with knife for the purpose of attacking those witnesses and immediately, PW1 Abubucker snatched the knife from A3 and attacked A1 Jaffar Ali, A3 Mohammed Unis and A4 Kuthus Basha and caused injuries and that thereupon mass of public assembled there and on seeing them, the accused ran away from the occurrence place. Thereafter, PW1 made arrangement to send the injured Sheik Ali as well as PW4 Sheik Dawood to Chingleput Government Hospital and that thereupon, Sheik Ali was declared dead by the Doctor and treatment was given to PW4 and that thereafter since A2 was making threat in the bazaar to close the shops, PW1, out of fear, waited in Fathima’s house for some time and then he proceeded to Kalpakkam Police Station and gave complaint marked as Ex.P1 and then this case was registered and investigation was proceeded. 9. Therefore, the cumulative effect of the evidence of P.Ws.1 to 5, in our view, clearly goes to show that the accused party alone are aggressors and instrumental for this occurrence by creating an incident at about 1.30 pm earlier and the occurrence of this case at about 6.00 pm near Fathima’s house and in the meanwhile, A1 has used the Mahindra Van for hitting upon Sheik Ali and causing his death. So, there is pre-determination for murdering the deceased Sheik Ali on the part of A1 and his people as soon as the accused party assembled with the deadly weapons and attacked the witnesses. It becomes clear that all the accused were having common object of attacking the witnesses and A1 particularly, on the spot, had the object of killing the deceased Sheik Ali by using Mahindra van. So, on the said facts of this case, it cannot be construed as if there is no common object or the accused parties are not aggressors and the aggressors could be only the witness parties. 10. So, on the said facts of this case, it cannot be construed as if there is no common object or the accused parties are not aggressors and the aggressors could be only the witness parties. 10. No doubt, the accused party also sustained injuries and took treatment in the hospital as seen from Exs.P3, P4 and P5 and on the basis of the statement of complaint given by A3, Mohammed Kasim, a case in Crime No.160 of 1997 was registered by the police and both the cases have been investigated by the police and after finding that the case of A3 could not be an acceptable one, referred the same and charge sheeted this case against the appellants and other accused. Though it is contended by the learned counsel appearing for the appellant that P.Ws.1 to 5 are closely related and interested witnesses, their version cannot be believed safely, we are not able to accept his contention as such inasmuch as the occurrence had taken place in day time and upon the residential street and there is no previous enmity and there is no necessity for these P.Ws.1 to 5 to give false evidence against the accused party. Likewise, the contention of the learned counsel appearing for the appellant, that injuries sustained by the accused have not been explained and proper investigation has not been done in the counter case also cannot be accepted and inasmuch as the injury sustained by the accused have been clearly explained by P.Ws.1, 2 and 3 as explained in Ex.P1. In other words, PW1 himself has admitted that it is he who caused injuries to the appellants herein on account of a sudden provocation and frustration on seeing the attack made upon the deceased Sheik Ali by using Mahindra Van and the attack made upon P.Ws. 3 and 4 by A2 and A3. Therefore, such explanation about the injury sustained by the accused is more natural and probable in the light of the facts and circumstances of the case and there is no material to reject or disbelieve such explanation. It is more so when PW1, after snatching the knife from A3, has chosen to attack the appellants/accused. 11. Therefore, such explanation about the injury sustained by the accused is more natural and probable in the light of the facts and circumstances of the case and there is no material to reject or disbelieve such explanation. It is more so when PW1, after snatching the knife from A3, has chosen to attack the appellants/accused. 11. In such circumstances, the contention as if investigation has not been properly done in the counter case also cannot be sustained and we do not find any suspectable or abnormal lapses on the part of the investigation agency as if there is no proper investigation. In normal prudence and practical approach, we are of the view that the accused party alone are aggressors and they alone are responsible for the injury sustained by P.Ws.3 and 4 and the death of Sheik Ali. No doubt, normally, the injury sustained by the accused party in the same occurrence should be explained by the prosecution. But, at the same time, when there is cogent, natural and unimpeachable evidence of prosecution witnesses like P.Ws. 1 to 5, the injuries sustained by the appellants/accused need not be elaborately explained beyond the explanation of P.Ws.1 to 3 and Ex.P1. Therefore, the alleged non explanation of the injury sustained by the accused cannot be a ground for rejecting the case of prosecution in total. Therefore, we are of the considered view that the prosecution has established the guilt of the appellants/accused and thereby the appellants are liable to be convicted. 12. Coming to the nature of offence, the evidence of P.Ws. 1 to 5 cumulatively goes to prove that A1 Jaffar Ali has wilfully murdered Sheik Ali in the time and manner alleged by the prosecution and thereby the conviction and sentence of life imprisonment against him under section 302 IPC has to be confirmed. A2 has caused simple injuries by using deadly weapon viz., knife upon PW3 as evidenced by Ex.P8 Accident Register copy and thereby the conviction and sentence of A2 under section 324 IPC for one year rigorous imprisonment also has to be upheld. A2 has caused simple injuries by using deadly weapon viz., knife upon PW3 as evidenced by Ex.P8 Accident Register copy and thereby the conviction and sentence of A2 under section 324 IPC for one year rigorous imprisonment also has to be upheld. A3, Mohammed Kasim has caused grievous injuries upon PW4 Sheik Dawood with deadly weapon viz., knife on his left wrist and caused the consequent dislocation as evidenced by the Accident Register copy marked as Ex.P7 and thereby his conviction and sentence of five year rigorous imprisonment with fine of Rs.500/= under section 326 IPC also has to be upheld. 13. Consequently, the criminal appeal fails and the same is dismissed as devoid of merits. The Trial Court is directed to secure the custody of the appellants/A1 to A3 to enable them to undergo the remaining period of sentence.