Judgment :- G.M. AKBAR ALI, J. 1. The conviction and sentence passed by the learned Additional District and Sessions Judge Fast Track Court No.II, Cuddalore in S.C.No.20 of 2011 dated 29.4.2011 are detailed hereunder: (i) The 1st appellant/A.1 in C.A.No.291 of 2011 was convicted for the offence under Sec.302 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.10,000/- and also convicted for the offence under Sec.341 IPC and Rs.500/-was awarded as fine. (ii) The 2nd appellant/A.2 in C.A.No.291/2011 was convicted for the offence under Sec.307 IPC and sentenced to undergo 10 years R.I and to pay a fine of Rs.2000/-and also convicted for the offence under Sec.341 IPC and Rs.500/- was awarded as fine. (iii) The appellant/A.3 in C.A.No.300/2011 was convicted for the offence under Sec.307 IPC and sentenced to undergo 10 years R.I and to pay a fine of Rs.2000/-, in default, to undergo 3 months Simple Imprisonment and also convicted for the offence under Sec.341 IPC and Rs.500/- was awarded as fine, in default, to undergo 2 months simple imprisonment. 2. For convenience sake, the accused 1 to 3 who are convicted and have preferred the present appeals are mentioned as Appellants 1 to 3. 3. The case of the prosecution, in a nutshell, is as follows: (a) The accused belong to Sonanguppam. The deceased and the prosecution witnesses belong to Tsunami Nagar which is adjacent to Sonanguppam. On 31.12.2009, due to New Year Celebrations, there used to be special pooja conducted at Ramar Koil at Sonangkuppam. (b) P.Ws.1 to 5 and the deceased went to Ramar Koil and participated in the special pooja at midnight. Around 1.00 a.m, they were returning to Tsunami Nagar via Enikaranthottam of Sonanguppam in two motor cycles. When they were reaching one Panangkattu Colony cross road, the appellants and other five accused wrongfully restrained them. Since there were previous enmity between the people from Sonangkuppam and Tsunami Nagar, the appellants and others abused them using filthy language. The deceased told them to allow them to leave as they were returning after attending the pooja. While so, the 1st appellant in Appeal No.291/2011 assaulted the deceased with bill hook on the head of the deceased. The appellant/A.3 in C.A 300/2011 assaulted the deceased with aruval and the deceased defended such assault and in that course, his left little finger was cut. While so, the 1st appellant in Appeal No.291/2011 assaulted the deceased with bill hook on the head of the deceased. The appellant/A.3 in C.A 300/2011 assaulted the deceased with aruval and the deceased defended such assault and in that course, his left little finger was cut. A.3 /3rd appellant again assaulted the deceased again on the back. The other acquitted accused also assaulted the deceased. When P.W.1 interfered A.2/2nd appellant assaulted him with broken beer bottle on his head and the other accused also assaulted the deceased and ran away from the scene of occurrence. The injured was taken to Government General Hospital, Cuddalore. (c) P.W.16 was the doctor attached to Government General Hospital Cuddalore. He examined the deceased. It was alleged that six persons assaulted him and he found a lacerated injury on the back of the head and the left little finger cut and was attached only with the skin portion. (d) P.W.19 was the Sub Inspector of Police attached to Cuddalore OT Police station. On 1.1.2010 at 1.40 a.m, he received intimation from Government General Hospital Cuddalore and around 3.00 a.m, he recorded statement from PW.1 under Ex.P.1 and came to station and registered a case in Cr.No.3/2010 for an offence 147, 148, 341, 294-b, 323, 324 and 307 IPC. He forwarded the FIR to the court as well as to other higher officials. (e) P.W.20 was the Inspector of Police and he received the FIR at 6.00 a.m and proceeded to the scene of occurrence, prepared observation mahazar and drew rough sketch. From there he proceeded to Government General Hospital Cuddalore and examined PWs.1 to 4 and recorded their statements. The injured was shifted to Government General Hospital Pondicherry and the Inspector received a death intimation stating that the deceased died at 8.45 a.m. At 9.30 a.m, he altered the FIR including an offence under Sec.302 IPC and he forwarded the express Report to the Court. He proceeded to the Government Hospital at Pondicherry. (f) At 10.45 a.m, he conducted inquest over the dead body of the deceased and prepared inquest report. At 12.45 p.m, he gave a request for postmortem. (g) P.W.15 was the doctor attached to Government General Hospital, Forensic Department. He proceeded to the Government Hospital at Pondicherry. (f) At 10.45 a.m, he conducted inquest over the dead body of the deceased and prepared inquest report. At 12.45 p.m, he gave a request for postmortem. (g) P.W.15 was the doctor attached to Government General Hospital, Forensic Department. He conducted the postmortem at 2.00 p.m. He found a sutured wound on the right side of the head, a cut injury on the left little finger, contusion on the neck, a sutured wound on the back. On internal examination, he found a fracture on the scalp and laceration on the brain. He opined that the deceased would appear to have died due to head injury. (h) P.W.20 Inspector of Police further proceeded with the investigation. On 2.1.2010 he arrested the 1st appellant, A.4 and A.5 at Thiruppapuliyur bus stand. He recorded the confession of the 1st appellant, pursuant to which, he recovered M.Os.1 to 5. He remanded the accused to judicial custody. He also examined the mahazar witnesses and recorded their statements. (i) On 3.1.2010, P.W.20 arrested the 2nd appellant and remanded him. He forwarded the material objects for chemical analysis and on 8.1.2010 he examined the doctor who conducted the postmortem and obtained postmortem report. On 9.1.2010 and 10.1.2010 he arrested the remaining accused and remanded them to judicial custody. (j) On 21.1.2010 P.W.20 examined the doctor who gave treatment to P.W.1 and obtained Wound Certificate. Thereafter, P.W.21 continued the investigation. On obtaining the report of the chemical analysis and Serology, he completed the investigation and laid a charge sheet before the learned Judicial Magistrate No.II, Cuddalore. 4. The case was taken on file by learned Judicial Magistrate No.II, Cuddalore in PRC No.7/2010 and on appearance of the appellants and the other accused, forwarded copies and later committed the case to the learned Additional District and Sessions Judge, Fast Track Court No.II, Cuddalore. The learned Additional District and Sessions Judge, Fast Track Court No.II, Cuddalore took the case on file in S.C.No.20 of 2011 and conducted the trial. To substantiate its case, the prosecution examined 21 witnesses, marked 20 documents, produced 11 material objects. Neither oral nor documentary evidence was adduced on the defence side. 5. With reference to the incriminating materials adduced by the prosecution, the trial Judge questioned the accused under Sec.313 Cr.P.C, for which, they pleaded innocence. 6. To substantiate its case, the prosecution examined 21 witnesses, marked 20 documents, produced 11 material objects. Neither oral nor documentary evidence was adduced on the defence side. 5. With reference to the incriminating materials adduced by the prosecution, the trial Judge questioned the accused under Sec.313 Cr.P.C, for which, they pleaded innocence. 6. The learned Additional Sessions Judge, Fast Track Court No.2, Cuddalore after examining the evidence in the light of the arguments advanced, ultimately found that the charges against the appellants were proved beyond reasonable doubt and convicted and sentenced them as stated above. Aggrieved by the conviction and sentence, the appellants 1 and 2 have preferred the appeal in C.A.No.291 of 2011 and the 3rd appellant has preferred the appeal in C.A.No.300 of 2011. 7. The point that arises for consideration is whether the conviction and sentence passed by the learned Additional Sessions Judge, Fast Track Court No.2, Cuddalore are sustainable or not. 8. Mr.V. Gopinath, the learned Senior Counsel appearing for the appellants 1 and 2 submitted that the learned trial judge has failed to appreciate the evidence culled out in the cross examination of the eyewitnesses. The learned counsel pointed out that in the cross examination of P.W.2 to 5, it was established that they were not present at the time of occurrence and came to the spot only thereafter. The learned Senior counsel also traversed through the contradictions in the evidence of P.W.1 on one side and P.Ws.2 to 5 on the other side. 9. The learned Senior counsel also pointed out that the motive for the appellants to assault the deceased and PW1 was not established. The learned Senior Counsel would further point out that P.W.1 the complainant would admit that one Haridas had given a complaint and the said First Information was not disclosed by the prosecution. 10. The learned Senior counsel would point out that the prosecuting parties were the aggressors and there was a fight between two villagers, in which, the appellants were implicated and therefore, neither the 1st appellant nor the other appellants can be held responsible for the alleged offences. 11. According to the learned Senior counsel, in any event there is no premeditation or preplanned attack and only a sudden quarrel which ended up with assault which will not attract the offence under Sec.302 IPC and exception under Sec.300 IPC has to be applied for a lesser sentence. 11. According to the learned Senior counsel, in any event there is no premeditation or preplanned attack and only a sudden quarrel which ended up with assault which will not attract the offence under Sec.302 IPC and exception under Sec.300 IPC has to be applied for a lesser sentence. 12. Mr.A. Arasu Ganesan learned counsel who appeared for the 3rd appellant submitted that the injuries sustained by PW.1 was not even grievous and it was only a simple injury. However he has been sentenced to 10 years RI. 13. On the contrary,V.M.R. Rajendran, learned Additional Public Prosecutor submitted that the prosecution has proved the case beyond reasonable doubt by examining eyewitness corroborated by medical evidence. The learned Additional Public prosecutor also submitted that the motive for the assault was established and there is nothing to reject the cogent evidence P.W.1 to 5, corroborated by the medical evidence and therefore, the conviction and sentence are sustainable. Therefore, this court need not interfere with the well considered judgment of the trial court. 14. We have carefully considered the submissions made on either side and perused the materials available on record. 15. The case of the prosecution is that on 1.1.2010 while the deceased and P.Ws.1 to 5 were returning after attending special pooja for New Year, they were assaulted by the appellants and the other four accused. The 1st appellant in C.A. No.291/2011, is said to have assaulted the deceased with a knife on his head which caused fracture on the scalp and lacerated injury on the brain which was the cause of death. 16. The 3rd appellant was alleged to have assaulted the deceased with knife and while the deceased defended his little finger was cut and the 2nd appellant was said to have assaulted P.W.1 with a broken beer bottle on his head and caused simple injuries. These facts were spoken about by P.Ws.1 to 5. According to these eyewitnesses who belong to Tsunami Nagar, while they were returning from Pooja, the appellants and other accused wrongfully restrained them and abused with filthy language and when the deceased protested the 1st appellant was alleged to have caused fatal injury. 17. As rightly pointed out by the learned counsel for the appellants P.W.1 is an injured witness. Though P.Ws.2 to 5 claimed that they also came along with the deceased. 17. As rightly pointed out by the learned counsel for the appellants P.W.1 is an injured witness. Though P.Ws.2 to 5 claimed that they also came along with the deceased. In the cross examination P.W.1 would admit that P.W.2 to 5 came to the spot only after the incident. All the witnesses would admit that the appellants and his villagers were also making preparations for the celebration of the New Year and they had their Panthal and decorations on the road. 18. According to the theory of the defence, the deceased came in a motorcycle and dashed against the panthal and the decorations. The same was objected by the villagers and they have caught hold of the deceased and the motorcycle. Having come to know about the same, the villagers of Tsunami Nagar came to the spot and there was a free for all and in that fight, the deceased sustained injury and there was no premeditation. 19. The learned Additional Public Prosecutor submitted that when the ocular evidence is clear and cogent that it is only the 1st appellant assaulted the deceased, which is corroborated by medical evidence, the defence theory cannot be accepted. 20. P.W.1 is the injured witness. He would state that first the deceased was assaulted and thereafter he was assaulted and only afterwards they raised alarm and P.W.2 to 4 came to the scene of occurrence. P.W.5 would state that he came to the spot after five minutes and found the deceased and the injured P.W.1. He immediately called 108 Ambulance. In his cross examination he would admit that he gave a written complaint. P.W.1 in his cross examination would also admit that P.W.5 Haridas had given a written complaint to the police on the spot. 21. P.W.1 would also admit that the villagers of the appellants had prepared for the celebration of the New Year on the road. He would further admit that more than 15 persons belonging to Sonangkuppam were present in the spot. 22. 21. P.W.1 would also admit that the villagers of the appellants had prepared for the celebration of the New Year on the road. He would further admit that more than 15 persons belonging to Sonangkuppam were present in the spot. 22. Considering the evidence of P.W.1, who is the injured witness and also on his admission in the cross examination that P.W.5 had already given a complaint and also the presence of two villagers in the scene of occurrence due to the celebration of New Year, the defence theory that there was a sudden fight between two parties and in that sudden fight, the deceased and P.W.1 sustained injuries, is to be accepted. 23. The overall evidence of the prosecution witnesses and the medical evidence would show that fatal injury was only on assault on the head of the deceased, which has caused fracture and internal bleeding. 24. The preponderance of probability would show that the villagers were celebrating New Year and in the midnight or in the early hours, there was a possibility of their having had a difference of opinion which led to sudden provocation and fight which resulted in the death of the deceased and simple injury to P.W.1. 25. When totality of the evidence show that there was a fight between two groups and injuries were caused, we are of the considered view that the alleged offence under Sec.302 is not attracted but only an offence under Sec.304 Part I for voluntarily causing the death of the deceased will get attracted. 26. According to P.W.1, the 1st appellant alone had caused the fatal injury. The 3rd appellant had caused the injury on the left hand which almost severed the left little finger. The charges against the 1st appellant was 302 IPC. However, against the appellants 2 and 3, a charge for the offence under Sec.307 IPC was framed. However, against the 2nd and 3rd appellants and the other acquitted accused, a charge under Sec.302 r/w 149 was framed. The presence of accused 4 to 7 was not believed by the trial court. Therefore, an offence under Sec.149 will not be made out. 27. In any event, the 3rd appellant was charged only with the offence under Sec.307 IPC, but not an offence under sec. 302 r/w 34. The presence of accused 4 to 7 was not believed by the trial court. Therefore, an offence under Sec.149 will not be made out. 27. In any event, the 3rd appellant was charged only with the offence under Sec.307 IPC, but not an offence under sec. 302 r/w 34. However, he was found guilty for the offence under Sec.307 IPC for causing the above said injury almost severing the left little finger of the deceased. Similarly, considering the nature of the injury which was caused by the 2nd appellant against P.W.1 which was simple, he cannot be punished for an offence under Sec.307 IPC. At the maximum, he could be punished for an offence under Sec.324 IPC. 28. Though the witnesses have stated that the deceased and PW.1 were wrongfully restrained, the offence cannot be made out when there is a sudden fight between two groups. Therefore, the offence under Sec.341 IPC need not be pressed in to service. 29. Therefore for the reasons stated above the 3rd appellant could be punished only for an offence under Sec.326 IPC. Similarly the 2nd Appellant could be punished for an offence under Sec.324 IPC. As far as the 1st appellant is concerned, he could be punished only for an offence under Sec.304 Part I IPC as we have already held that offence under sec.302 IPC is not attracted. 30. In the result, the appeals are partly allowed. The conviction and sentence passed by the learned Additional District and Sessions Judge Fast Track Court No.II, Cuddalore against the 1st appellant for the offence punishable under Sec.302 IPC, against the appellants 2 and 3 for the offence under Sec.307 IPC and against all the appellants for the offence under Sec.341 IPC are set aside. Instead, (i) the 1st appellant is convicted for the offence punishable under Sec.304 Part I IPC and sentenced to undergo 7 years rigorous imprisonment, (ii) the 2nd appellant is convicted for the offence punishable under Sec.324 IPC and sentenced to undergo 2 years rigorous imprisonment, (iii) the 3rd appellant is convicted for the offence punishable under Sec.326 IPC and sentenced to undergo 3 years rigorous imprisonment. 31. The period of detention already undergone by the appellants is ordered to be set off under Sec.428 of Cr.P.C. Fine amount imposed on the appellants is confirmed. Consequently, connected MP is closed.