Judgment :- M. Chockalingam, J. Challenge is made to a judgment of the Additional District and Sessions Division, Fast Track Court No.IV, Madurai, in S.C.No.209 of 1997 whereby the appellant who is shown as A-2 along with three others stood charged under Sec.302 read with 34 of IPC, tried and found guilty under Sec.302 of IPC and awarded life imprisonment along with a fine of Rs.1000/- and default sentence. 2. The short facts necessary for the disposal of this appeal can be stated thus: (a) P.W.1 is a resident of Cumbum. The deceased Rajangam was the brother of P.W.1. A-1 to A-4 belonged to Bodi. A-1 and A-3 are son and mother respectively. Eight years prior to the date of occurrence i.e., on 19.03.1996, they were moving in the street to the west of P.W.1's house. P.W.1 had given a sum of Rs.5,000/- as loan to A-4. When she demanded return of the money, A-4 begun to quarrel with her and supporting A-4, A-1 to A-3 also quarreled with P.W.1. At that time, P.W.7, whose house is situate to the west of A-4's house, intervened and pacified the situation. Two days later, P.W.1 went to P.W.3's house by the street where A-4's house is situate. At that time, A-4 abused her. She reported this to her husband, who kept quiet. Then P.W.1 got angry and went to her mother's house. She asked for her brother the deceased and her father. Her mother informed her that both of them had gone to work. She spent that night at her mother's house. At about 4.00 a.m., the deceased came home. She immediately reported to him about the incident. The deceased removed his shirt, which was drenched with meat and proceeded to the house of A-4 to question her about the quarrel. P.Ws.1 and 3 followed him. At that time, the street light was burning, apart from the lights in the houses of P.W.7 and Mayakkal. The deceased asked A-4 and the other accused how they can quarrel after borrowing money. At that time, A-1 came with a knife from A-4's house, while A-2 came with an iron rod and A-3 came with an iron rod. A-1 stabbed the deceased on the back of his head with the knife. A-2 attacked the deceased on the forehead with a rod and also on the left flank. At that time, A-1 came with a knife from A-4's house, while A-2 came with an iron rod and A-3 came with an iron rod. A-1 stabbed the deceased on the back of his head with the knife. A-2 attacked the deceased on the forehead with a rod and also on the left flank. A-4 attacked the deceased on the right knee with a bucket. The deceased fell down. Immediately, A-1 with the knife stabbed him repeatedly on the back. A-3 hit the deceased on the right thigh below the knee with the knife. P.W.1 shouted. A-1 threatened her. The deceased died instantaneously. On hearing her cry, P.W.6, the sister-in-law, came to the scene of occurrence. P.W.1 told P.W.6 about the happenings. P.W.6 asked her to inform P.W.5, who is another brother. Accordingly, P.W.1 informed P.W.5. (b) P.W.5 came to the scene of occurrence, saw the deceased and went to Cumbum North Police Station. P.W.11, who was the Sub-Inspector of Police, Uthamapalayam Police Station, and who held the additional charge of Cumbum North Police Station, received the Complaint Ex.P.1, given by P.W.5, and registered a case in Crime No.48 of 1996 under Section 302 I.P.C. Then, the printed FIR, Ex.P16, was despatched to the Court and to the higher authorities through P.W.10, the head constable. P.W.11 gave the information over phone to Cumbum South Police Station. (c) P.W.12, the Inspector of Police, attached to Cumbum South Police Station, who was in-charge of Cumbum North Police Station, on receipt of the copy of the FIR, proceeded to the scene of occurrence, made an inspection in the presence of witnesses and prepared an Observation Mahazar, Ex.P8 and a Rough Sketch Ex.P17. Then, he recovered the blood stained earth, sample earth, an iron rod and a small bucket with handle under a cover of mahazar. He conducted inquest on the dead body of the deceased in the presence of witnesses and panchayatdars. He recorded the statements of P.W.3 and others. The Inquest Report is Ex.P18. He also recorded the statements of P.Ws.5, 6, 7 and others. Then the dead body was sent to the hospital through a Constable along with a requisition, Ex.P3, for the purpose of postmortem. (d) P.W.2, the Assistant Surgeon, attached to Cumbum Government Hospital, on receipt of the said requisition, conducted autopsy on the dead body of Rajangam and has noticed 8 external injuries. Then the dead body was sent to the hospital through a Constable along with a requisition, Ex.P3, for the purpose of postmortem. (d) P.W.2, the Assistant Surgeon, attached to Cumbum Government Hospital, on receipt of the said requisition, conducted autopsy on the dead body of Rajangam and has noticed 8 external injuries. He has issued a postmortem certificate, Ex.P2, with his opinion that the deceased would appear to have died of shock and haemorrhage of injuries sustained and death would have occurred 8 -12 hours prior to autopsy. (e) Pending investigation, P.W.12 arrested A-2 and A-4 in the presence of P.W.8 and another. A-2 volunteered to give a confessional statement and the admissible part is marked as Ex.P10. Pursuant to the same, he produced an iron rod which was recovered under a cover of mahazar. He brought both the accused to Cumbum North Police Station. He gave them change of clothes and recovered the blood stained clothes under a cover of mahazar. On 21.03.1996, he handed over the investigation to the Inspector of Police, Cumbum North Police Station. (f) The Investigating Officer at the relevant point of time died and therefore, P.W.12 was again examined as P.W.13. On 22.03.1996, the second Investigating Officer examined other witnesses, including P.W.2. On 25.03.1996, he learnt that A-1 surrendered before Uthamapalayam Court and he gave a requisition to take him in police custody. On 29.03.1996, he took him in police custody and obtained the voluntary confessional statement and on the basis of the confessional statement, he recovered the knife from the tree hole. All the material objects were sent to the Forensic Sciences Laboratory for the purpose of chemical analysis. The Serological Report is Ex.P5 and the Chemical Analysis Report is Ex.P6. After completing the investigation, on 31.05.1996, he laid the final report against the accused. 3. The case was committed to Court of Session and necessary charge was framed. In order to substantiate the charge, the prosecution marched 13 witnesses and also relied on 18 exhibits and 12 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. No defence witness was examined. 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. No defence witness was examined. The trial Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and hence found them guilty and awarded punishment as referred to above. On being found guilty, A-1, A-3 and A-4 have preferred appeals in C.A.Nos.87 and 309 of 2006 respectively and they were disposed of by this Court by a judgment dated 20.11.2007. Now, A-1, who was found guilty by the trial Court, has brought forth this appeal before this Court. 4. Advancing arguments on behalf of the appellant, the learned Counsel would submit that as far as this appellant was concerned, the prosecution rested its entire case upon the evidence of P.W.1; that P.W.1 happened to be the sister of the deceased; that under the circumstances, her evidence is an interested one; that apart from that, the medical opinion canvassed by the prosecution did not support the prosecution case; that as far as the overt acts attributed to this appellant were concerned, they were not one supported by any medical evidence; that while the trial Court disbelieved the other part of the evidence adduced by the prosecution through the eyewitnesses, it should have discarded the evidence of P.W.1 also and should have acquitted the appellant, but on the contrary found him guilty; and hence he has got to be acquitted by this Court. 5. Added further the learned Counsel that even assuming that the prosecution has proved the factual position, the act of the appellant/A-2 would not attract the penal provision of murder since the evidence would go to show that there was a quarrel that preceded the occurrence, and hence, it has got to be considered by this Court. 6. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 7. As seen above, the case of the prosecution was that P.W.1 gave Rs.5000/- as loan to A-4 which she did not return, and a few days prior to the occurrence, when she made the demand, there was a quarrel between them. 7. As seen above, the case of the prosecution was that P.W.1 gave Rs.5000/- as loan to A-4 which she did not return, and a few days prior to the occurrence, when she made the demand, there was a quarrel between them. At that time, P.W.7 had intervened and pacified the situation. Even on the previous day to the occurrence, she was just crossing the house of A-4, and A-4 looking at her used filthy language. She immediately went home and informed to her husband but was of no avail. Then she went to the mother's house and was waiting over there for her brother, the deceased. The deceased returned home at about 4.00 A.M., and she informed him about the happenings. Thereafter, he went to the house of A-4. P.W.1 also accompanied him. At that time, when A-4 was asleep, he knocked the doors, called her and questioned about her conduct. At that time, a quarrel arose as a result of which all the four accused attacked him, and he died. Following the registration of the case, the investigation has taken place. The medical evidence adduced through the postmortem Doctor who conducted autopsy and the postmortem certificate issued by him, would go to show that the deceased died out of shock and haemorrhage due to the injuries sustained. Therefore, it can be recorded that the deceased died on account of homicidal violence. 8. In the instant case, though the prosecution marched number of witnesses as eyewitnesses, the trial Court did not believe the evidence of P.W.3, but the evidence of P.W.1 is believed. Even as per the version of P.W.1, she accompanied him. As far as the overt acts of the appellant are concerned, they are corroborated by the medical evidence. It was A-2 who gave the death blow along with A-1, and they caused the death. The trial Court was not able to agree that there was any common intention shared and hence all were found guilty under Sec.302 of IPC independently. Further at this juncture, A-1, A-3 and A-4 preferred appeals, and now this appeal has arisen at the instance of A-2. 9. From the available materials, it would be quite clear that the occurrence has taken place in front of the house of A-4. P.W.1 has categorically admitted that there was a quarrel that took place two days prior to the occurrence. 9. From the available materials, it would be quite clear that the occurrence has taken place in front of the house of A-4. P.W.1 has categorically admitted that there was a quarrel that took place two days prior to the occurrence. On the previous day, she was just crossing the house of A- 4, and at that time, A-4 abused filthy language. Then she wanted to report the matter to her husband, but ended in vain. Thereafter, she went to her mother's house in order to inform the same to her brother, the deceased and stayed over there. When he returned home, he was informed by her. Thus the evidence would indicate that on the instigation of P.W.1, the deceased had gone to the house of A-4 at that time. At this juncture, it is pertinent to point out that the occurrence has taken place in front of the house of A-4 when the accused attacked him. That apart, the time of occurrence was at about 4.00 A.M. All would go to show that the deceased had gone over there and picked up a quarrel as a result of which the occurrence took place. Further, when A-4 was also asleep, he woke up, and others joined him. Thus it is a case where there was no intention that was shared, nor had A-1 or A2 intention to cause death. But, this has actually been done by provocation and also the quarrel which was picked up at the instance of the deceased. 10. This Court had an occasion to consider the submissions made by either side on the earlier occasion, decided the matter on merits, found A-1 guilty under Sec.302 IPC and awarded five years Rigorous Imprisonment. As regards A-3 and A-4, they were found guilty under Sec.324 IPC and awarded two years Rigorous Imprisonment. This Court is of the considered opinion that what is applicable to A-1 is equally applicable to A-2 also since both are on the same footing. Since this Court had an occasion to consider the merits of the matter and found A-1 guilty under Sec.302 IPC, the same is applicable to the appellant/A-2 also. Under the circumstances, the conviction and sentence imposed by the trial Court on the appellant/ A-2 under Sec.302 of IPC are modified, and instead, he is convicted under Sec.304 (Part II) of IPC and sentenced to undergo five years Rigorous Imprisonment. Under the circumstances, the conviction and sentence imposed by the trial Court on the appellant/ A-2 under Sec.302 of IPC are modified, and instead, he is convicted under Sec.304 (Part II) of IPC and sentenced to undergo five years Rigorous Imprisonment. The sentence already undergone by him shall be given set off. 11. With the above modification in conviction and sentence, this criminal appeal is dismissed.