Judgment :- P.D. Dinakaran. J. 1. Crl.A.No.469 of 2005 has been preferred by the appellant, Rani, who is A.3 and Crl.A.No.473 of 2005 of 2005 has been preferred by the appellants Kumaravel and Yuvaraj, who are A.1 and A.2, respectively, in S.C.No. 78 of 2004, on the file of the learned Additional Sessions Judge (FTC), Namakkal. By judgment dated 25. 2005, A.1 and A.2 were convicted under Section 302 IPC, for which, each of them were sentenced to undergo life imprisonment and to pay a fine of Rs.2000/= each, in default, to undergo two months simple imprisonment and they were also convicted under Section 324 IPC and sentenced to undergo one year rigorous imprisonment each. A.3 has been convicted under Section 324 IPC and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1000/=, in default, to undergo one month simple imprisonment. Challenging the said conviction and sentence, the appellants have preferred the above two Criminal Appeals. 2. The respondent-Erumaipatti Police have filed a final report alleging that, due to prior enmity with the deceased Krishnasamy, with respect to the boundary wall that existed in between their respective houses, on 6. 2003, at 12.00 noon, when the deceased and his son Mani and their workmen were engaged in putting up the compound wall with hollow bricks, after demolishing the existing compound mud wall, the accused 1 to 3 demolished the hollow bricks used for the purpose of raising the compound wall, and when this was questioned by the said Mani, with an intention to murder P.W.1, Mani, A.1 with the crow bar attacked Mani on his head, due to which he fell down, and A.3 with the help of Aruvalmanai (vegetable cutter) attacked him on his head, left hand, right shoulder, while A.2 attacked Mani with a stick on his hip and legs, thereby A.1 to A.3 have committed an offence punishable under section 307 read with Section 34 IPC. Secondly, in the course of same transaction, when P.W.1s father Krishnaswamy intervened, the first accused with the crow bar, attacked Krishnasamy on his head, the second accused beat him with stick on his head and the third accused attacked Krishnasamy with Aruvalmanai on his head and hands repeatedly, due to which, Krishnasamy succumbed to the fatal injuries 5 days later, in spite of treatment taken in the Hospital, thereby A.1 to A.3 have committed an offence punishable under Section 302 read with 34 IPC. 3. The case was committed to Court of Sessions and charges were framed and since the accused denied his complicity in the offence, the case was taken up for trial. The prosecution, in order to bring home the charges against the accused, examined P.Ws.1 to 22, marked Exs.P.1 to P.32 and M.Os.1 to 5. On behalf of the accused D.Ws. 1 and 2 were examined and Exs.D.1 to D.4 were marked. 4. The prosecution version as unfolded during the course of trial, in a nutshell, are as follows:- (a) P.W.1, Mani is the son of the deceased Krishnaswamy. He is an injured eye witness. He speaks about the motive and manner of occurrence. According to him, the accused are residing on the eastern side of his house. There was a prior enmity between them with respect to disputed boundary wall. On the date of occurrence, when he engaged the workmen in putting up a compound wall with hollow bricks by removing the mud-wall which already existed there, at 12.00 noon, all the three accused came there and prevented the said work. P.W.1 resisted them. Then, suddenly, the first accused beat P.W.1 on his head with a crow bar. A.3 with Aruvalmanai, beat him on his head, left shoulder and right hand. A.2 also beat him with a stick on his head. Then his father, Krishnasamy intervened and attempted to prevent further attacks. In that course A.1 sustained an injury on his head. At that time, A.3 cut his father on the head with Aruvalmanai. Krishnasamy attempted to ward off such attack by his hands. In that course, A.3 Rani also sustained injuries by dashing against the wall. While that be so, the second accused Yuvaraj beat his father on the head, due to which, he sustained bleeding injuries. When the deceased, P.W.1, Mani and his workmen raised alarming sound, the neighbours came there. Krishnasamy attempted to ward off such attack by his hands. In that course, A.3 Rani also sustained injuries by dashing against the wall. While that be so, the second accused Yuvaraj beat his father on the head, due to which, he sustained bleeding injuries. When the deceased, P.W.1, Mani and his workmen raised alarming sound, the neighbours came there. Seeing them, the accused ran away from the place of occurrence along with the weapons. Thereafter, Selvam, brother of P.W.1, and his wife Rajammal admitted both P.W.1 and his father Krishnaswamy in the Government Hospital, Namakkal. His father was referred to Mohan Kumaramangalam Government Medical College, Salem, for better management. P.W.1 gave the complaint, Ex.P.1 to the police, while he was admitted in the Hospital. After five days of the occurrence, his father died in the Mohan Kumaramangalam Government Medical College, Salem. .(b) P.W.2 is the grandson of the deceased Krishnaswamy. He corroborates the version of P.W.1. P.W.3, worker, who was engaged in the construction of the disputed compound wall, turned hostile. However, he has stated that on the date of occurrence, when they were engaged in constructing the compound wall, the accused came there and objected for putting up of the compound wall. P.W.4 and 5, co-workers, also though turned hostile, stated in their chief examination, about the objection raised by the accused for putting up the compound wall at the disputed place. .(c) P.W.6, whose son-in-law is P.W.1, deposed that he came to the residence of the deceased to attend a family function. He also supports the version put forward by P.W.1. P.W.7 and 8, independent eye witnesses turned hostile. P.W.9, younger brother of P.W.1, who is residing in a nearby house, in his deposition, stated about the prior enmity over the disputed compound wall. On the date of occurrence, on hearing the noise, he rushed to the spot along with other neighbours and on seeing them, the accused fled from the spot. He saw his brother P.W.1, Mani and his father Krishnasamy sustained bleeding injuries. He took them to the Namakkal Government Hospital. On the next day, his father was referred to the Mohan Kumaramangalam Government Medical College, Salem. He has further deposed that three days after the date of occurrence, he identified the second accused Yuvaraj to the police when he was standing in the Namakkal Bus Stand. He took them to the Namakkal Government Hospital. On the next day, his father was referred to the Mohan Kumaramangalam Government Medical College, Salem. He has further deposed that three days after the date of occurrence, he identified the second accused Yuvaraj to the police when he was standing in the Namakkal Bus Stand. .(d) P.Ws.10 and 11 are the mahazar witnesses for preparation of the Observation Mahazar, Ex.P.2 and for recovery of the Material Objects, namely weapons used by the accused for commission of the crime. P.W.12, Village Administrative Officer, is the attesting witness to the confession statement obtained from A.2 when he was under the Police custody. P.W.14 is the Head Constable, who has submitted the Express Report to the Judicial Magistrate No.1, Namakkal, on 6. 2003 at 8.30 a.m., after altering the offence from Sections 324, 326 IPC to Sections 324, 326 and 302 IPC. P.W.15 is the Head Clerk, working in the Judicial Magistrate Court, Namakkal at the relevant point of time. According to him, he has forwarded the material objects to the Forensic Science Department under Ex.P.7 on the basis of the requisition letter of the Inspector of Police under Ex.P.6. Subsequently, biological report, Ex.P.8 and serological report, Ex.P.9 were received by him. .(e) P.W.16 is the Sub Inspector of Police, who initially took up investigation in the matter. According to him, on 6. 2003 he has arrested the second accused in the Namakkal Bus Stand in the presence of witnesses and based on his confession statement, he has recovered the material objects namely, Aruvalmanai (M.O.1), Crow Bar (M.O.2), Stick (M.O.3), Dhoti (M.O.4) and Lungi (M.O.5). He has recorded statements of witnesses. On 6. 2003, at 0.15 hours, he received the death intimation of Krishnaswamy from the Mohan Kumaramangalam Government Medical College, Salem, and thereafter altered the offence into 324, 326 and 302 IPC. He prepared Express Report Ex.P.12 and sent the same to the Judicial Magistrate-I, Namakkal. .(f) P.W.17 is the Head Constable who took the body to the hospital for postmortem and subsequently recovered M.Os.4 and 5 under Form No.95. .(g) P.W.18 is the Duty Doctor who attended the deceased on 6. 2003 at 2.05 p.m., to whom, the deceased stated that he had been attacked by three known persons by crow bar, Aruvalmanai and knife. He was in a semiconscious stage at that time. .(g) P.W.18 is the Duty Doctor who attended the deceased on 6. 2003 at 2.05 p.m., to whom, the deceased stated that he had been attacked by three known persons by crow bar, Aruvalmanai and knife. He was in a semiconscious stage at that time. On the next day the doctor referred the deceased to the Mohan Kumaramangalam Government Medical College, Salem, for further treatment. She issued Ex.P.16 Accident Register. The Doctor opined that the injuries sustained by the deceased are possible by use of the weapons, M.Os. 1 to 3. On the same day, at 2.15 p.m., the Doctor examined P.W.1 Mani and issued Ex.P.15 Wound Certificate. On the same day at 2.40 p.m., she examined the first accused and third accused and issued Accident Register Exs.P.23 and P.25 respectively. According to the Doctor, the injuries sustained by A.1 to A.3 are simple in nature. On the same day at 7.00 p.m., A.2 was treated by the Doctor for simple injuries as out patient and Ex.P.27 is the Accident Register. She also deposed that A.1 to A.3 would have sustained the injuries by the use of M.Os.1 to 3 at the time mentioned. .(h) P.W.19 is the Sub Inspector of Police. On 6. 2003 on receiving the intimation Ex.P.17, went to the Government Hospital, Namakkal at 3.30 pm., and obtained a statement Ex.P.1 from P.W.1 Mani and registered a case in Cr.No:140/03 under Sections 324 and 326 IPC. The Printed FIR is Ex.P.18. He visited the scene of occurrence and prepared Ex.P.2 Observation Mahazar and also drew Rough Sketch, Ex.P.19 in the presence of witnesses and also obtained statements from them. On the same day at 4.00 p.m., he obtained statements from A.1 and A.3 and based on that, registered Cr.No:141/03 under Sections 324 and 326 IPC. Printed FIR is Ex.P.20 and he sent the same to the Court. .(i) P.W.21, is the Inspector of Police. On receipt of Express Report, Ex.P.12, in Cr.No.140/03 on 6. 2003 at 6.00 a.m., he took up further investigation in the case and visited the place of occurrence. He went to Mohan Kumaramangalam Government Medical College, Salem, and conducted inquest in the presence of panchayatdars and witnesses between 10.00 a.m., and 1.00 p.m. The inquest report is Ex.P.31. He issued requisition Ex.P.29 for conducting he post-mortem. 2003 at 6.00 a.m., he took up further investigation in the case and visited the place of occurrence. He went to Mohan Kumaramangalam Government Medical College, Salem, and conducted inquest in the presence of panchayatdars and witnesses between 10.00 a.m., and 1.00 p.m. The inquest report is Ex.P.31. He issued requisition Ex.P.29 for conducting he post-mortem. .(j) P.W.20, Professor of Forensic Medicine, attached to the Mohan Kumaramangalam Government Medical College, Salem, conducted post-mortem and found the following injuries:- .(1) A linear lacerated sutured wound present no right fronto temporal region of scalp 7 cm in length x 1 cm x bone deep. .(2) A linear incised sutured wound present on right frontal region of scalp 7cm in length x 1 cm x bone deep. .(3) A linear lacerated (sutured) wound on left frontal region of scalp 3 cm in length x 1 cm x bone deep. .(4) A linear sutured lacerated would present on left fronto – temporal region of scalp 2 cm x 1 cm x bone deep. .(5) A contusion present on right fronto temporal region of scalp 12 cm x 8 cm x 0.5 cm dark red. .(6) A fissured fracture of frontal and temporal bones 8 cm in length left frontal-5 cm in length. Right anterior normal fossa-4 cm in length. .(7) Black eye on right side. .(8) Bun hole present on right parietal bone 1 x 1 cm .(9) Cut injuries on right little finger 1 x 0.5 x 0.5 cm left ring finger 1 x 05. x 0.5 cm. .(10) Abrasion over left axilla 2 x 2 cm. .(11) Sub-dural and sub-arachnoid haemorrhages present over both cerebral hemispheres (antemortem) .P.W.20, Doctor, issued Ex.P.30 post-mortem Certificate and also opined that the deceased appeared to have died of Head Injuries. .(k) Continuing with his investigation, on 16. 2003, P.W.21 recorded the statements from other witnesses. Also obtained statements from the Head Constable, S.I. Of Police Subash, Dr.Uma, and Dr.Vallinayagam. He also investigated the case registered in Cr.No.141/03 on the basis of the statements given by the Accused and handed over both the cases for further investigation to his successor on his transfer. .(l) P.W.22, the successor of P.W.21, took up further investigation in Cr.No.140 of 2003 and perused the entire investigation work done by his predecessor. He also investigated the case registered in Cr.No.141/03 on the basis of the statements given by the Accused and handed over both the cases for further investigation to his successor on his transfer. .(l) P.W.22, the successor of P.W.21, took up further investigation in Cr.No.140 of 2003 and perused the entire investigation work done by his predecessor. Since P.W.21 recorded a finding that the complaint of the accused are of exaggerated one, P.W.22 referred Cr.No.141/03 as mistake of fact and on completion of investigation, filed charge sheet on 8. 2003 in respect of Cr.No.140/03 against the accused under Section 307 read with Section 34 IPC and Section 302 read with Section 34 IPC. 5. 1. After completion of the evidence by the prosecution witnesses, when the accused were questioned under Section 313 of the Code of Criminal Procedure as to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses, the accused denied each and every circumstances put against them as contrary to the facts and each of the accused filed written statements. 5. 2. According to the accused, on the date of occurrence at 12.00 noon, P.W.1 Mani along with the workmen engaged in putting up the hollow bricks compound wall adjacent to their house. When this was prevented by the accused claiming the disputed place as the one belonging to them, the deceased Krishnasamy with the crow bar attacked the first accused on his head, right leg and left fore hand, resulting in bleeding injuries. On seeing this, A.3, mother of A.1 came there and P.W.1 Mani attacked her also with the crow bar on her right upper hand. When this was prevented by A.2, P.W.1 Mani, with the same crow bar, attacked on his right hand. Thereafter A.1 and A.3 were admitted as in-patients in the Namakkal Government Hospital for treatment, while A.2 was treated as out-patient. On the complaint given to the Erumaipatti Police, a case in Cr.No.141/03 was registered against the deceased Krishnaswamy and P.W.1 Mani under Sections 324 and 326 IPC. Though they were examined, the independent witnesses Satheeshkumar and Manoharan have not been examined by the Police inspite of their request and ultimately the respondent-Police referred their case as mistake of fact. According to the accused, they have not attacked the deceased Krishnaswamy and in the melee, the deceased sustained injuries. Though they were examined, the independent witnesses Satheeshkumar and Manoharan have not been examined by the Police inspite of their request and ultimately the respondent-Police referred their case as mistake of fact. According to the accused, they have not attacked the deceased Krishnaswamy and in the melee, the deceased sustained injuries. Further, the weapons were available at the scene of occurrence and they have not brought with them from Namakkal. Further, the deceased aged about 75, died only due to the operation performed on him for the head injuries sustained by him and that is why the prosecution has not produced the history of the case sheet maintained by the Hospital. Further, the first accused had sustained a fracture on his left hand for which he took treatment from a Private Nursing Home. The accused examined D.Ws.1 and 2 on their side. 5. 3. D.W.1, an Orthopaedic Doctor attached to Subi Hospital, a private Nursing Home, Namakkal, deposed that on 6. 2003 at 9.00 p.m., he examined the first accused. A.1 complained of pain and swelling in his left hand. On the next day X-ray was taken and a fracture was found on the lower portion of left side ulna bone, for which he was dressed with bandage and tablets were given by him. The doctor also found a sutured wound on his head. According to him, of the two injuries, one is grievous in nature. 5. 4. D.W.2 is a known person to the accused as well as to the deceased and he is residing 500 to 600 feet away from their house. At the time of occurrence he was in the Ration Shop, which situates in the house of the accused. At about, 12.00 noon, 4 or 5 persons from the ration shop, hearing the noise, rushed towards the house of the deceased. When he entered the house of the deceased, he saw the accused were preventing P.W.1 and his men from putting up the hollow bricks. Then the deceased attacked the first accused with the crow bar on his head. Thereafter P.W.1 Mani also attacked him on his head. When this was intervened by A.3, mother of the first accused, she also received injuries at the hands of P.W.1 and the deceased. Then the deceased attacked the first accused with the crow bar on his head. Thereafter P.W.1 Mani also attacked him on his head. When this was intervened by A.3, mother of the first accused, she also received injuries at the hands of P.W.1 and the deceased. Thereafter A.2 Yuvaraj prevented further attack on his wife, A.3 and in the said course of action the attack given by Mani, mistakenly fell on the deceased and the deceased fell on a stone and sustained head injuries thereof. According to D.W.2, it is only the deceased and P.W.1 who initially attacked the accused and the accused were not armed with any weapon. 6. The learned trial judge, on perusal of the materials, both oral and documentary and after hearing both sides, convicted and sentenced the accused as aforementioned. Hence, the present appeal. 7. 1. The learned counsel appearing for A-1 and A-2, appellants in C.A.No.473 of 2005, submits that even if the entire facts of the case are taken to be true, as per the case of the prosecution, there was a skirmish between the parties with respect to the compound wall constructed by the deceased party with hollow bricks in between the houses of both the parties and in the said melee, the accused have also suffered injuries and hence, in exercise of private defence, they have committed the offence and therefore, the offence committed by A-1 and A-2 would attract Exception 2 to Section 300 I.P.C. 7. 2. The learned counsel appearing for A-3/appellant in C.A.No.469 of 2005, though strenuously assailed the judgment of conviction and sentence, submitted that since admittedly the occurrence is said to have taken place in the skirmish between the parties and she also having suffered injuries at the hands of opponent party, and she having been convicted only under Section 324 IPC, some leniency can be shown to her in the question of sentence, considering the fact that she, being a lady, suffered incarceration for a period of four months. 8. Per contra, the learned Additional Public Prosecutor reiterated the reasons that weighed the learned trial Judge to sustain the order of conviction and sentence. 8. Per contra, the learned Additional Public Prosecutor reiterated the reasons that weighed the learned trial Judge to sustain the order of conviction and sentence. The learned Additional Public Prosecutor further submits that even if the case of the defence that the deceased party was the aggressor is accepted, it should be construed as a case of free-fight and hence, no question of private defence would arise and each accused is liable to be convicted for their individual overt acts and while considering the overt acts attributed to the accused, they have been rightly convicted and sentenced by the learned trial Judge and no interference is called for. 9. We have given our thoughtful consideration to the rival contentions urged on either side and perused the records. 10. The point for consideration is whether the prosecution has proved the guilt of the accused beyond reasonable doubt. 11. Neither before the trial Court nor before this Court, any dispute had been raised as regards the cause of death of Krishnasamy. The same stands established through P.W.20, the doctor, who conducted autopsy and issued Ex.P.30, the post-mortem certificate, which would conclusively show that the deceased died on account of head injuries. Therefore, we have no hesitation to hold that the deceased died out of homicidal violence. 12. The case of the prosecution as could be culled out from the evidence of P.W.1, an injured eye witness, is that there was a long-standing dispute between the deceased family and the accused family with regard to the existing compound wall between their houses. The accused rented out their house to a third party and were residing at Namakkal at the time of occurrence. On the date of occurrence, P.W.1, Mani son of the deceased, demolished the mud wall which was in existence between the houses and constructed a wall with hollow bricks. On coming to know about this, at about 12.00 noon, the accused came there and objected to the erection of wall and also pushed down the hollow blocks constructed over there. P.W.1 questioned the accused and told them it would be useful for both of them, but it resulted in a skirmish. Suddenly, the first accused took a crow bar and attacked P.W.1 on his head and A-2 and A-3 also attacked P.W.1 with stick and vegetable cutter on his head and other parts. P.W.1 questioned the accused and told them it would be useful for both of them, but it resulted in a skirmish. Suddenly, the first accused took a crow bar and attacked P.W.1 on his head and A-2 and A-3 also attacked P.W.1 with stick and vegetable cutter on his head and other parts. When the deceased intervened, he was also attacked by the accused over his head. The deceased and P.W.1 were taken to the hospital by other witnesses, where the statement of P.W.1 came to be recorded by the police, after which, the law was set in motion. The deceased, on the next day was referred to Mohan Kumaramangalam Medical College, Salem, for better treatment. But, in spite of the treatment given to the deceased, he died at the hospital after five days of the incident. 13. It is to be noted that the non-retraction of the above evidence of P.W.1, as to the fight, when put against the accused under Section 313 Cr.P.C. also makes it clear that the accused were very much present at the time and place of occurrence and in the melee, the accused also sustained injuries, which is also the admitted case of the prosecution. Thus, it is crystal clear that there was a long-standing dispute between the parties with regard to the compound mud wall built in the midst of the respective houses, which ended in a skirmish on the date of occurrence, during which both parties sustained injuries; but, unfortunately, the deceased breathed his last after five days of the incident. The medical evidence also shows that the deceased died on account of the head injuries sustained. We are, therefore, of the opinion that the deceased succumbed to the injuries caused by the accused. .14. The question now arises is the nature of offence committed by the accused. The case of the prosecution is that because the deceased party demolished the mud wall already existed between the houses and started constructing a new wall with hollow bricks, the accused got enraged over the same and questioned the deceased party. Both the parties exchanged words and suddenly, they started attacking each other. According to P.W.1, an injured eye witness, first he was attacked by all the accused and thereafter, when the deceased intervened, he was also attacked. Both the parties exchanged words and suddenly, they started attacking each other. According to P.W.1, an injured eye witness, first he was attacked by all the accused and thereafter, when the deceased intervened, he was also attacked. But, the case of the defence is that it was the deceased, followed by P.W.1, who first mounted the attack on the accused party. However, it is not in dispute that in the said melee, both the parties have sustained injuries. A survey of the above evidence leaves an impression that there was a free fight between the two groups, namely, the prosecution party and the accused party, in which both the parties sustained injuries. 15. It is trite law that a free fight is that when both sides mean to fight a pitched battle. The question of who attacks and who defends in such a fight is wholly immaterial and it depends on the tactics adopted by the rival party. In such cases of mutual fights, both sides can be convicted for their individual acts, vide Gajanand v. State of U.P. ( AIR 1954 SC 695 : 1954 Cri LJ 1746); Kanbi Nanji Virji v. State of Gujarat (1970) 3 SCC 103 : 1970 SCC (Cri) 520 : AIR 1976 SC 219 ); Puran v. State of Rajasthan (1976) 1 SCC 28 : 1975 SCC (Cri) 750 : AIR 1976 SC 912 ); Vishvas Aba Kurane v. State of Maharashtra (1978) 1 SCC 474 : 1978 SCC (Cri) 125 : AIR 1978 SC 414 ); Dwarka Prasad v. State of U.P., 1993 Supp (3) SCC 141). 16. Thus, in the case on hand, a perusal of the evidence adduced on both sides, it cannot be said that which party provoked or how the fight was initiated. In fact, only on coming to know about the construction of new wall, the accused, who were residing at a different place, came down to the place of occurrence. In such circumstances, a possible inference based on a high degree of probability could easily be drawn that there was a sudden quarrel and free fight between the parties. There was no premeditation on the part of the accused party to attack the deceased party in the course of such fight. In such circumstances, a possible inference based on a high degree of probability could easily be drawn that there was a sudden quarrel and free fight between the parties. There was no premeditation on the part of the accused party to attack the deceased party in the course of such fight. It is also not the prosecution case that the accused anticipated that the prosecution party would demolish the mud wall and that they were lying in wait to cause harm to the deceased. Therefore, we have no hesitation to come to the conclusion that there was a free-fight between the two parties and during such fight, both exchanged words and blows and sustained injuries. In such a case, the contention of the learned counsel for the appellants that only in exercise of private defence, the accused have committed the offence is to be rejected and the accused are only liable to be convicted based upon their individual overt acts. Let us now find out from the evidence, the individual overt acts attributed to each of the accused. 17. As far as the first accused is concerned, he is alleged to have attacked P.W.1 on his head with a crowbar, on receipt of which P.W.1 felt dizziness. It is further alleged that when the deceased intervened, he was also attacked by the first accused on his head. Though the evidence discloses that the other accused also inflicted injuries on the head of the deceased, the fact remains that the second accused used only a stick and the third accused used a vegetable cutter, by which only cut injuries could have been caused and as per the medical evidence, no such cut injuries are found on the person of the deceased. That apart, as per the medical evidence through P.W.18, the doctor who treated the injured initially, the three injuries found on the person of the deceased could have been possible only by one weapon and that the said injuries are not sufficient in the ordinary course of nature to cause death. That apart, as per the medical evidence through P.W.18, the doctor who treated the injured initially, the three injuries found on the person of the deceased could have been possible only by one weapon and that the said injuries are not sufficient in the ordinary course of nature to cause death. The evidence of the prosecution witnesses that the first accused used a crowbar at the time of occurrence is not disputed and it is also not the case of the prosecution or the defence that no crow bar was available at that time, since admittedly there was demolition of compound mud wall that existed between their houses and a new wall with hollow bricks was being constructed thereon and hence, possibility of the availability of the crow bar at the place of occurrence cannot be ruled out. P.W.1, though related to the deceased, his ocular testimony cannot be discarded merely because he would only be interested in the deceased. He is an eye witness to the incident and he also suffered injuries during the course of same transaction. 18. True it is, that D.W.2 has stated that it was the deceased party, who first attacked the accused party and they were the aggressors, which is contrary to the case of the prosecution. However, it is seen from the cross-examination of D.W.2 that P.W.1 and the deceased have filed suits against the parents of D.W.2 and that there was also a criminal complaint against D.W.2 alleging that D.W.2 set fire to the house of the deceased and in the said case, D.W.2 was not found guilty and he was exonerated from the case. Therefore, it is clear that D.W.2 might have some animosity against the deceased party for speaking falsehood against them and hence, his evidence cannot be wholly accepted. 19. Under the above circumstances, we are of the opinion that the death would have occurred due to the injuries caused by the first accused with the crow bar and as such, the first accused is liable to be convicted. But, the question arises now is under what offence the first accused is liable to be convicted. In other words, whether the offence committed by the accused is a culpable homicide amounting to murder or not amounting to murder ? But, the question arises now is under what offence the first accused is liable to be convicted. In other words, whether the offence committed by the accused is a culpable homicide amounting to murder or not amounting to murder ? On going through the evidence, we could see that the accused party had no intention to cause the death of the deceased and as we already stated and at the risk of repetition, there was no premeditation on the part of the accused and it was a free-fight between the two groups and during such fight, the deceased sustained injuries and succumbed to the same after five days of the incident. Further, as per the evidence of the doctor, P.W.18, the three injuries found on the person of the deceased are not sufficient in the ordinary course of nature to cause death. But, however, we are able to see that the first accused would have certainly had the knowledge that by causing such bodily injury, death is likely to occur. Therefore, considering the facts and circumstances of the case, we are of the view that the offence committed by the first accused is culpable homicide not amounting to murder and as such, he is liable to be convicted under Section 304 Part-II I.P.C. Accordingly, the first accused is convicted under Section 304 Part-II I.P.C. 20. As far as the sentence is concerned, the first accused is reported to be in jail from the date of his incarceration by the police and thus, considering the over all circumstances of the case and passage of time, in the interest of justice, we are inclined to impose a sentence of three years rigorous imprisonment. 121. Coming to the question of offence committed by the second accused, as already stated, he was alleged to have used only a stick at the time of occurrence and he attacked the deceased on the head. Hence, we are constrained to set aside the conviction of the second accused under Section 302 I.P.C. and instead, we convict the second accused for the offence under Section 324 I.P.C. As far as the sentence is concerned, it is reported that he was in jail nearly for four months and considering the passage of time, in the interest of justice, we are inclined to reduce the sentence of imprisonment to the period already undergone. 22. 22. As far as the third accused is concerned, though she also actively participated in the occurrence by attacking the deceased on the head with Aruvalmanai, a vegetable cutter, which would cause only cut injuries, no such cut injuries were found on the person of the deceased by the doctor. The trial Court itself, based on evidence, found her guilty only for the offence under Section 324 I.P.C. and as such, we find no reason to interfere with the said conviction. However, as far as the sentence of imprisonment is concerned, it is reported that she was also inside the jail for about four months and hence, we are inclined to reduce the sentence to the period already undergone. 123. Insofar as the overt act attributed to all the three accused for causing injuries to P.W.1, the evidence is very clear and convincing, which is also corroborated by the medical evidence. Therefore, we confirm the conviction of the trial Court under Section 324 I.P.C. against all the three accused and we also confirm the sentence of imprisonment imposed on the first accused for the said conviction; however, we reduce the sentence of imprisonment to the period already undergone as far as the second and third accused are concerned. In the result, .(i) the conviction of the first accused under Section 302 I.P.C. is modified and instead, he is convicted under Section 304 Part-II I.P.C. and for the said conviction, he is sentenced to three years rigorous imprisonment; .(ii) the conviction and sentence imposed on the first accused under Section 324 I.P.C. for causing injuries to P.W.1 are confirmed; (iii) the conviction of the second accused under Section 302 I.P.C. is set aside and instead, he is convicted under Section 324 I.P.C. and for the said conviction, the sentence of imprisonment imposed on the second accused is reduced to the period already undergone; .(iv) similarly, the conviction of the second accused under Section 324 I.P.C. for causing injuries to P.W.1 is confirmed and the sentence is reduced to the period already undergone; .(v) the conviction of the third accused for the offence under Section 324 I.P.C. under two counts is confirmed, but the sentence of imprisonment is reduced to the period already undergone. .(vi) The appeal is accordingly allowed in part.