Judgment :- M. Chockalingam, J. This appeal challenges the judgment of the Sessions Division, Dharmapuri made in S.C.No.291 of 2006 whereby the appellants stood charged, tried and found guilty as follows: (i) A1 and A2 were found guilty under section 302 IPC and awarded life imprisonment along with fine of Rs.2000/- each, in default, to undergo one year rigorous imprisonment each. (ii) A1 was found guilty under section 323 IPC and awarded the punishment of fine of Rs.500/-, in default, to undergo 15 days rigorous imprisonment (iii) A2 was found guilty under section 324 IPC and awarded fine of Rs.1000/-, in default, to undergo one month rigorous imprisonment. 2. The short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 is the wife of the deceased Arumuga Chetty. Arumuga Chetty had 4 brothers, out of whom, two of them died already. The second accused is the son of the first accused. A1 is the brother of the said Arumuga Chetty. The deceased and his brothers divided the family properties and were enjoying their respective properties separately. The deceased executed an instrument in favour of his only daughter. He gave all the property to the only daughter by way of instrument which was not liked by the first accused. On an earlier occasion, Arumuga Chetty was attacked by A1 and A2. From that time, there was strained relationship between both the families. On the date of occurrence i.e., on 210. 1997 at about 5.30 a.m., the said Arumuga Chetty went to his field and cut the ridge for the flow of water. On seeing this, A1 questioned, how he could do so. At that time, A2 was also present there. Both of them immediately dragged him to their land and tied him with the margosa tree with a plastic rope. When P.W.1 was informed, she rushed to the spot and she requested them not to beat him but, A1 kicked P.W.1. She fell down. Immediately, the second accused attacked her with a stick on different parts of the body. A1 also joined with him and attacked her on different parts of the body. Both the accused attacked the deceased who was also tied with the tree. P.W.1 raised alarm. Immediately, both the accused fled away from the place of occurrence. (b) P.W.1 asked P.W.3 to take her husband to the hospital. A1 also joined with him and attacked her on different parts of the body. Both the accused attacked the deceased who was also tied with the tree. P.W.1 raised alarm. Immediately, both the accused fled away from the place of occurrence. (b) P.W.1 asked P.W.3 to take her husband to the hospital. Then P.W.1 proceeded to Marandahalli Police Station and gave a complaint at about 10.00 p.m. on 210. 1997. P.W.10-Sub Inspector of Police, on the strength of Ex.P1 report, registered a case in Crime No.1020/197. The F.I.R. Ex.P18 was dispatched to Court. Thereafter, P.W.2 took Arumuga Chetty to Palacode Government Hospital. P.W.6 doctor attached to the Government Hospital gave initial treatment. At about 11.10 p.m. P.W.6 medically examined P.W.1 and the accident register in that regard was marked as Ex.P2. On 210. 1997, at about 1.15 a.m. P.W.6 also examined Arumuga Chetty who was brought by P.W.3. Thereafter, P.W.6 advised them to take Arumuga Chetty to the Government Hospital at Bangalore. (c) P.W.10 took up investigation. He proceeded to the spot, made an inspection and prepared the Observation Mahazar Ex.P19 and a rough sketch Ex.P20. He also examined the witnesses and recorded their statement. Thereafter, on 210. 1997 at about 9.420 a.m. Arumuga Chetty who was admitted in the Hospital at Bangalore, died. (d) An intimation was given to Willson Garden Police Station and P.W.8 Sub Inspector of Police of Willson Garden Police Station, on receipt of information at 13.45 hours, registered a case in Crime No.276/1997 under Section 174 Cr.P.C and the F.I.R. in that regard was marked as Ex.P8. It was in Kannada and it was translated in Tamil and the same was marked as Ex.P9. The said F.I.R was dispatched to the Court. (e) The Sub-Inspector conducted inquest on the dead body of the deceased and the inquest report was marked as Ex.P10. The dead body was subjected to post mortem. P.W.12 doctor conducted autopsy and gave his opinion in the post mortem certificate that the deceased died out of shock and also due to excessive bleeding and head injury and the said post mortem certificate was marked as Ex.P.24. After receipt of the copy of the post mortem certificate, the case was converted from section 174 Cr.P.C. to Section 302 I.P.C. and the amended F.I.R. was dispatched to Court. (f) Pending investigation, both the accused were arrested. A1 came forward to give confessional statement. After receipt of the copy of the post mortem certificate, the case was converted from section 174 Cr.P.C. to Section 302 I.P.C. and the amended F.I.R. was dispatched to Court. (f) Pending investigation, both the accused were arrested. A1 came forward to give confessional statement. The admissible part of the same was marked as Ex.P22, pursuant to which, he produced M.O.2 bamboo stick, M.O.1- Malu (knife) and M.O.3-rope. They were recovered under a cover of mahazar Ex.P23. Further, A2 came forward to give confessional statement. The same was recorded and the admissible part of the same was marked as Ex.P.5. The Investigating officer examined the witnesses and recorded their statement and sent the accused to judicial remand. After completion of the investigation, the investigating officer filed a final report. (g) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges leveled against the accused, the prosecution examined 13 witnesses and relied on 24 exhibits and 3 material objects. After completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C., they denied them as false. No defence witness was examined. The trial Court after hearing the arguments advanced on either side took the view that the prosecution has proved the case beyond reasonable doubt and found the accused guilty and rendered the judgement of conviction and sentence as referred to above. Hence, this appeal at the instance of the appellants. 3. Advancing the arguments on behalf of the appellants, the learned counsel would submit that in order to substantiate the charges leveled against the appellants, the prosecution examined P.W.1, not only as the eye witness but also as an injured witness. It was P.W.1 who gave Ex.P1 report. According to the prosecution, as per Ex.P1 report, the occurrence has taken place at about 5.30 p.m. on 210. 1997. P.W.1 has categorically admitted that she went to the police station at 7.00 p.m. and informed the Police Officer about the occurrence and thereafter, she went to the Government Hospital for treatment. The case was registered at about 10.00 p.m. Thus, it would be taken that the F.I.R. could not have come into existence as put forth by the prosecution. 4. Pending appeal, A1 died and the appeal was actually prosecuted by A1. The case was registered at about 10.00 p.m. Thus, it would be taken that the F.I.R. could not have come into existence as put forth by the prosecution. 4. Pending appeal, A1 died and the appeal was actually prosecuted by A1. Even from the evidence available, A2 could not have been present at the place of occurrence. According to P.W.1 when her husband was being attacked by A1 and A2, she was in the house and she was informed by one Murugan but the said Murugan was not examined. After getting information, she went to the spot. She found her husband tied with the margosa tree. When she questioned the same, she was also attacked. Had it been true, she would have raised alarm and the neighbors around the place would have arrived but she has not taken any steps at all. According to P.W.2, he went to the spot. He found A1, he talked to him but at the time he did not find A2 at all which would mean A2 was not at all present at the place of occurrence. When P.W.1 gave Ex.P1 she has stated A2s name with ulterior motive that A2 was also was also present and both attacked the deceased and P.W.1. 5. Added further learned counsel, P.W.4 would claim that he was the neighbor of the deceased. From the evidence of P.W.4 and also from the evidence of P.W.2 it would be quite clear that P.W.2 did not take the deceased to the hospital but the police came to the scene of occurrence which would indicate that the police had the knowledge of the occurrence even earlier. The occurrence, according to the prosecution, has taken place at 5.30 p.m. on 210. 1997 and the deceased was immediately taken to hospital by P.W.2 but as per Ex.P2 accident register issued in the Government Hospital, Palacode, the deceased was admitted in the hospital at 1.15 a.m. on 210. 1997 and no explanation was forth coming from the prosecution n that regard. 6. According to P.W.3, he saw the deceased in the hospital only after the deceased was admitted but the Accident register Ex.P3 would indicate that it was P.W.3 who admitted the deceased in the hospital. This witness was examined after two years from the date of occurrence. Ex.P1 though claimed to be received by P.W.10 at 10.00 p.m. on 210. 6. According to P.W.3, he saw the deceased in the hospital only after the deceased was admitted but the Accident register Ex.P3 would indicate that it was P.W.3 who admitted the deceased in the hospital. This witness was examined after two years from the date of occurrence. Ex.P1 though claimed to be received by P.W.10 at 10.00 p.m. on 210. 1997, it reached the Court only on 210. 1997 after 11.00 a.m. i.e., after a delay of 13 hours. Therefore, the arrest, confession and recovery were all manipulated for the purpose of the case. 7. Added further learned counsel, insofar as A2 was concerned, even assuming the factual position put forth by the prosecution that A2 attacked both the deceased and P.W.1, he beat them only with a bamboo stick and there is nothing to indicate that there was any common intention to kill the deceased along with A1. The post mortem certificate would indicate that the injury on the head of the deceased was fatal and that was caused by A1. Though P.W.1 has stated that A2 attacked him with stick on different parts of the body no corresponding injuries were found. The only injury that is noticed in the post mortem certificate was that it was caused below the knee. Insofar as the charge under section 324 IPC against A2 was concerned, the trial Court has imposed a punishment of fine. Under such circumstance, there is nothing to indicate A2s involvement in the crime. Hence, A2 has got to be acquitted. 8. The Court heard the Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 9. It is not in controversy that Arumuga Chetty, husband of P.W.1 was taken to the hospital at Palacode from the place of incident. Thereafter, he was taken to the Government Hospital at Bangalore, where he was declared died. Following the inquest made by the investigating officer, the dead body was subjected to post mortem. P.W.12 doctor gave his opinion that the deceased died out of shock due to head injury sustained. The fact that Arumuga Chetty died out of homicidal violence was never disputed by the appellant before the trial Court. 10. Pending the appeal, A1 died and it was also recorded. Insofar as A2 was concerned, the appeal is further prosecuted. P.W.12 doctor gave his opinion that the deceased died out of shock due to head injury sustained. The fact that Arumuga Chetty died out of homicidal violence was never disputed by the appellant before the trial Court. 10. Pending the appeal, A1 died and it was also recorded. Insofar as A2 was concerned, the appeal is further prosecuted. In order to substantiate the charges leveled against the appellants, the prosecution examined P.W.1 as not only the eye witness but also as an injured witness. From the evidence of P.W.1, it could be seen that her husband was tied with the margosa tree and it was A1 who attacked him with Malu (knife) on different parts of the body. From the medical opinion canvassed through post mortem doctor, the head injury was fatal and it has caused the death of the deceased. P.W.1 has categorically deposed that A2 also attacked the deceased with bamboo stick and the corresponding injures are also found on different parts of the body, but all those injuries are found to be simple, as could be seen from the available materials. There is nothing to indicate that both the appellants had common intention to share. It was A1 who caused the fatal injury and he was found guilty under section 302 I.P.C. When A1 was serving sentence, pending appeal, he died. Thus, the appeal, insofar as A1 is concerned, it stands abated. 11. A1 and A2 had no common intention. In the absence of any materials to indicate that A2, in furtherance of common intention had kill the deceased Arumuga Chetty, A2 cannot be punished for causing the death of the deceased but he has got to be dealt with for his individual act. Insofar as A2 is concerned, as noticed in the post mortem certificate, injury was found below the knee and on different parts of the body. The injury on the head, caused by A1 was found to be fatal. Under such circumstances, the Court is of the opinion that A2 has to be found guilty under section 324 I.P.C for causing simple injuries on the deceased and the award of two years rigorous imprisonment would meet the ends of justice. Insofar as injury caused by A2 on the body of P.W.1 is concerned, the lower court, though found A2 guilty under section 324 I.P.C., it has imposed a punishment of payment of fine. Insofar as injury caused by A2 on the body of P.W.1 is concerned, the lower court, though found A2 guilty under section 324 I.P.C., it has imposed a punishment of payment of fine. Insofar as that part is concerned, no appeal has been preferred by the State in that regard and hence, that part of the judgement cannot be disturbed. 12. Accordingly, the judgment of conviction and sentence imposed on the appellant under Section 302 IPC is modified and instead, the appellant is convicted under Section 324 IPC and is sentenced to undergo 2 years R.I. The period of sentence already undergone by the appellant is ordered to be given set off. The fine amount imposed under Section 302 IPC shall be treated as fine amount imposed under Section 324 IPC. In other respects, the judgment of the trial court will hold good. 13. With the above modification in conviction and sentence, this criminal appeal is dismissed. By order dated 17. 2009, this court has issued non bailable warrant as against A2. Hence, the learned Sessions Judge is directed to take steps to secure the presence of A2 and commit him to prison to serve the remaining period of sentence imposed upon him.