Judgment :- Common Judgment : (M. Chockalingam, J.) 1. This judgment shall govern these two appeals in C.A.No.986/2007 by A-2 and A-3 and C.A.No.1073/2007 by A-1. 2. In these appeals, challenge is made to a judgment of the I Additional Sessions Division, Krishnagiri, made in S.C.No.242 of 2005 whereby the appellants herein stood charged under Sec.302 read with 34 of IPC, and on trial, they were found guilty as per the charge and awarded life imprisonment along with a fine of Rs.1000/- and default sentence. 3. The short facts necessary for the disposal of these appeals can be stated as follows: (a) P.W.1 is the brother of the deceased Velavan, while P.W.3 is the uncle. On 19. 1995, at about 9.00 P.M., P.W.1, his brother the deceased, his friend P.W.2 and P.W.3 were all taking food at the Industries where they were working. At the time of taking tiffin, they sent the Office Boy to get chattni and sambar from the opposite hotel which was run by a lady. Accordingly, the Office Boy approached that hotel and asked for the same; but, it was refused. On refusal, he came back and informed the same. Then, P.W.1 gave Rs.5/- to him for the purchase of the same. Again the Office Boy went over there, asked for the same and got the very same answer. Immediately, the deceased went over there and quarrelled with that lady, and in that process, A-1 who was taking food in that hotel, intervened to prevent the quarrel; but, it continued. There was a quarrel between the deceased and A-1. A-1 and the deceased returned. Within half an hour later, A-1 accompanied by A-2 and A-3, came to the place and had a quarrel with the deceased. At that time, A-2 and A-3 caught hold of the deceased, when A-1 stabbed him on the flank and caused injuries on the chest. Immediately, the accused ran away from the place of occurrence. .(b) P.Ws.1, 2 and 3 took Velavan to the nearby Meerabai Hospital, where the Doctors could not give him treatment. Then, he was taken to the Government Hospital, Hosur, and after the initial treatment, he was taken to St. Johns Hospital, Bangalore, where he was declared dead. Immediately, the accused ran away from the place of occurrence. .(b) P.Ws.1, 2 and 3 took Velavan to the nearby Meerabai Hospital, where the Doctors could not give him treatment. Then, he was taken to the Government Hospital, Hosur, and after the initial treatment, he was taken to St. Johns Hospital, Bangalore, where he was declared dead. Immediately, P.W.1 proceeded to the respondent police station where P.W.8, the Sub Inspector of Police, was on duty, to whom he gave a complaint, Ex.P1, at 4.00 A.M. on 19. 1995. On the strength of Ex.P1, the report, a case came to be registered by P.W.8 in Crime No.685 of 1995 under Sc.302 of IPC. The printed FIR, Ex.P14, was despatched to the Court. .(c) P.W.9, the Inspector of Police, on receipt of the copy of the FIR, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P9. He also drew a rough sketch, Ex.P15. Then, he conducted inquest on the dead body of Velavan in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P16. He gave a requisition, Ex.P2, to the hospital authorities for the conduct of autopsy. .(d) P.W.4, the Medical Officer, attached to the Government Hospital, Hosur, on receipt of the said requisition, conducted autopsy on the dead body of Velavan and has issued a postmortem certificate, Ex.P3, with her opinion that the deceased died due to shock due to haemorrhage from the injury to the left lung about 12 to 14 hours prior to autopsy. .(e) Pending the investigation, both A-2 and A-3 were arrested by the Investigator on 29. 1995. They gave confessional statements voluntarily which were recorded in the presence of witnesses. The admissible part of the confessional statement of A-2 is marked as Ex.P10, pursuant to which he produced M.O.1, knife, which was recovered under a cover of mahazar, Ex.P11. Then, they were sent for judicial remand. .(f) The Investigator came to know that A-1 surrendered before the Court on 29. 1995, and he was taken to police custody, during which he volunteered to give a confessional statement, which was recorded in the presence of witnesses. The admissible part is marked as Ex.P12, pursuant to which he identified M.O.2, tempo van, which was recovered under a cover of mahazar, Ex.P13. He was sent for judicial remand. 1995, and he was taken to police custody, during which he volunteered to give a confessional statement, which was recorded in the presence of witnesses. The admissible part is marked as Ex.P12, pursuant to which he identified M.O.2, tempo van, which was recovered under a cover of mahazar, Ex.P13. He was sent for judicial remand. All the material objects were sent to the Forensic Sciences Department for the purpose of analysis. Ex.P6 is the Chemical Analysts report, and Ex.P7 is the Serologists report. P.W.10, the Inspector of Police, took up the case for further investigation. On completion of investigation, he filed the final report. 4. The case was committed to Court of Sessions, and necessary charge was framed. In order to establish the charge, the prosecution examined 10 witnesses and also relied on 16 exhibits and 5 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which they flatly denied as false. On the side of defence, 2 witnesses were examined, and 2 documents were marked. On completion of the evidence on both sides, the trial Court heard the arguments advanced, and took the view that the prosecution has proved the case beyond reasonable doubt and hence, found them guilty and awarded the punishment as referred to above. Hence these appeals at the instance of the appellants. 5. Advancing arguments on behalf of the appellants in C.A.No.986 of 2007, the learned Senior Counsel Mr.Shanmughasundaram would submit that in the instant case, the prosecution has miserably failed to prove its case; that despite the same, the learned trial Judge has taken an erroneous view; that according to the prosecution, the occurrence has taken place at 9.00 P.M. on 19. Advancing arguments on behalf of the appellants in C.A.No.986 of 2007, the learned Senior Counsel Mr.Shanmughasundaram would submit that in the instant case, the prosecution has miserably failed to prove its case; that despite the same, the learned trial Judge has taken an erroneous view; that according to the prosecution, the occurrence has taken place at 9.00 P.M. on 19. 1995 in front of the Industries, and at that time, A-2 and A-3 caught hold of the deceased, while A-1 stabbed him to death; that even as per the prosecution case, first of all, he was treated by the Doctor attached to the Government Hospital, Hosur; but, no documents have been marked which would clearly be indicative of the fact that had those documents been produced, the same would go against the prosecution; that under the circumstances, it was nothing but false; that a perusal of Exs.D1 and D2 would clearly indicate that the persons who were actually involved in the occurrence were unknown persons; and that under the circumstances, the accusation made against the appellants, are unfounded. .6. Added further the learned Senior Counsel that P.W.1 is the elder brother; that P.W.3 is the uncle, and P.W.2 is the friend; that according to the prosecution, the occurrence had taken place at 9.00 P.M., and they were all taking food; that that had P.Ws.1 to 3 really witnessed the occurrence, there was no need for him going over to the police station at 4.00 A.M. the next day and making the complaint and that too, when the police station is situated half a kilometer from the place of occurrence; that in the instant case, the accident register copy and the case history were marked; that the said delay would indicate that all embellishments and improvements have been made; that under the circumstances, it was only a cooked up affair in order to suit the prosecution case; that apart from that, the FIR had reached the Judicial Magistrate at about 7.25 A.M.; that the Court is also situated nearby, and here also, there was 3 ½ hours delay;. 7. 7. Added further the learned Senior Counsel that as far as A-2 and A-3 are concerned, they have been added unnecessarily; that actually, they had no role to play; and that taking advantage of the situation that they were also present at the place of occurrence along with the public, they have been added, and hence they are entitled for acquittal. 8. The learned Counsel for the appellant/A-1 in C.A.No.1073 of 2007 would submit that there are discrepancies in the evidence of the eyewitnesses with regard to the place of occurrence; that even assuming that the factual position that it was A-1 who stabbed the deceased and as a consequence of the same, he died, is taken to have been proved, it would not attract the penal provision of murder; that the injuries found on him were simple; that even as per the prosecution case, there was a quarrel; that in that process, he has been provoked; that under the circumstances, A-1 intervened to stop the quarrel; but, the deceased had quarrelled with A-1; that it is pertinent to point out that at the time when the quarrel had taken place, it was actually between the lady, who is the owner of the shop, and the deceased; that there is no premeditation to commit the offence; that the entire occurrence is said to have taken place suddenly in a spur of moment; that in such circumstances, the ingredients of Sec.302 of IPC are not made out, and at the most, it may attract Sec.304 (Part I) or (Part II) of IPC, and this aspect which was failed to be considered by the trial Court, has got to be considered by this Court. 9. The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 10. It is not in controversy that Velavan, the brother of P.W.1, as a direct consequence of the stab injury which was noticed by the postmortem Doctor, succumbed to the injuries. The prosecution in order to prove the same, has not only examined the postmortem Doctor as P.W.4, but also marked the postmortem certificate issued by him, as Ex.P3, from which it would be quite clear that he died out of shock and haemorrhage due to the injuries sustained. The prosecution in order to prove the same, has not only examined the postmortem Doctor as P.W.4, but also marked the postmortem certificate issued by him, as Ex.P3, from which it would be quite clear that he died out of shock and haemorrhage due to the injuries sustained. The fact that he died out of homicidal violence was never disputed by the appellants before the trial Court, and hence no impediment is felt by the Court in recording so. 11. In order to substantiate that it was A-2 and A-3 who caught hold of the deceased, and it was A-1 who stabbed him, and as a direct consequence, the death ensued, the prosecution examined three witnesses who are P.Ws.1 to 3. True it is, P.W.1 is the brother, and P.W.3 is the uncle, while P.W.2 is the friend of the deceased. Merely on that ground, their evidence cannot be rejected unless and until a strong circumstance is noticed. Even if the careful scrutiny test is applied, this Court is satisfied that their evidence has got to be accepted. All these witnesses have spoken in one voice that all of them were taking tiffin in the Industries and since the chattni and sambar were found to be insufficient, they sent the Office Boy to the opposite hotel to get the same; but, there was a refusal, and thereafter, the deceased went over there and questioned the conduct of the hotel owner, a lady; that while the quarrel was going on between the deceased and the owner, it was A-1 who intervened; that the quarrel continued between A-1 and the deceased; and that after some time, A-1 came over to the place along with A-2 and A-3, and stabbed the deceased. As far as this factual position is concerned, all the three witnesses have spoken in one voice. Their evidence stood the test despite the cross-examination in full. This ocular testimony adduced through P.Ws.1 to 3 was fully corroborated by the medical evidence canvassed through the postmortem Doctor. Apart from that, A-2 and A-3 were arrested and A-1 who surrendered before the Court, was taken to police custody. They have given confessional statements. Pursuant to the confession made by A-2, the weapon of crime has been recovered. This ocular testimony adduced through P.Ws.1 to 3 was fully corroborated by the medical evidence canvassed through the postmortem Doctor. Apart from that, A-2 and A-3 were arrested and A-1 who surrendered before the Court, was taken to police custody. They have given confessional statements. Pursuant to the confession made by A-2, the weapon of crime has been recovered. At this juncture, it is pertinent to point out that as far as this part of the evidence placed before the trial Court is concerned, the trial Court has accepted the same and rightly too. .12. Now the contentions put forth by the learned Counsel for the appellants and recorded above remained to be considered. In the case on hand, this Court is unable to agree with the contention put forth by the learned Counsel that even as per the earliest documents namely the accident register copy and the case history, Exs.D1 and D2 respectively, it was found to be unknown persons, and therefore, the assailants were actually not known at the time of occurrence. On a perusal of Exs.D1 and D2, the Court has to necessarily disagree with the learned Counsel. It could be seen that certain manipulations have been made, and it was an impediment felt by the prosecution in proving the same. Now, at this juncture, it remains to be stated that in a given case like this, where the evidence of the occurrence witnesses inspired the confidence of the Court, much weight has got to be attached to the same than the medical evidence which was only a corroborative piece. In the case on hand, the evidence of P.Ws.1 to 3, as narrated above, would be pointing to the guilt of the accused. 13. The learned Senior Counsel has also made the further comment over the delay that was caused in giving the first information to the police. It is true that the occurrence has taken place at 9.00 P.M. According to the witnesses, the deceased was actually taken first to Meerabai Hospital at Hosur, and there, he could not be given treatment, and then they went over to the Government Hospital, Hosur, where only initial treatment was given, and they were advised to take him to St. Johns Hospital, Bangalore, and they went over there where he was declared dead. It is clear that the time consumption in all the above process would cause the delay. Johns Hospital, Bangalore, and they went over there where he was declared dead. It is clear that the time consumption in all the above process would cause the delay. It is true that the case was brought to the notice of the police at 4.00 A.M. the next day. This interval of delay that has been caused, has taken place in the natural course of events, and it was neither deliberate nor in order to make any embellishment in the case. Under the circumstances, this Court is unable to agree with the learned Senior Counsel. Thus, the prosecution has brought home the guilt of the accused that it was A-1 who stabbed him, while the crime was facilitated by A-2 and A-3 by catching hold of him. Under the circumstances, it has got to be factually recorded so. .14. As far as the second line of argument is concerned, the Court is able to see force in the contention put forth by the appellants side. Even as per the prosecution case, there was a quarrel between the deceased and the hotel owner, who was a lady. Admittedly, the occurrence has taken place at about 9.00 P.M. At that time, A-1 was actually taking food in the hotel, and he went to the rescue of the lady owner; but, the deceased commenced quarrel with A-1, and within a short span of time, when the deceased came out of the hotel, A-1 accompanied by A-2 and A-3 attacked him. The time interval would clearly indicate that due to the provocation he has done so. Under the circumstances, the act of the accused was neither intentional nor premeditated but only due to the quarrel and also provocation. Hence they have got to be found guilty not for murder, but for culpable homicide not amounting to murder. This Court is of the considered opinion that the act of A-1 would fall under Sec.304 (Part II) read with 34 of IPC, and A-2 and A3 have shared the common intention. Thus, A-2 and A-3 have also got to be found guilty under Sec.304 (Part II) read with 34 of IPC. This Court is of the view that they are to be awarded with five years Rigorous Imprisonment which would meet the ends of justice. 15. Thus, A-2 and A-3 have also got to be found guilty under Sec.304 (Part II) read with 34 of IPC. This Court is of the view that they are to be awarded with five years Rigorous Imprisonment which would meet the ends of justice. 15. Accordingly, the conviction and sentence of life imprisonment imposed by the trial Court under Sec.302 read with 34 of IPC are set aside, and instead, the appellants are convicted under Sec.304 (Part II) read with 34 of IPC, for which they are directed to suffer five years Rigorous Imprisonment. The sentence already undergone by them shall be given set off. The fine and default sentence imposed by the trial Court will hold good. 16. In the result, with the above modification in conviction and sentence, both the criminal appeals are dismissed. It is reported that A-2 and A-3 are on bail. Hence the Sessions Judge shall take steps to commit them to prison to undergo the remaining period of sentence.