Judgment T. Mathivanan, J. 1. This memorandum of criminal appeal is directed against the order of conviction and sentence dated 27.6.2008 and made in Sessions Case in S.C.No.65 of 2007 on the file of the learned II Additional Sessions Judge, Tirunelveli, convicting the appellant/accused under Section 302 of IPC r/w 34 I.P.C. and sentencing him to suffer imprisonment for life and also to pay a fine of Rs.10,000/- in default to suffer for a further period of two years of simple imprisonment. He was acquitted in respect of the charges under Sections 449 and 294(b) I.P.C., and Section 3(2)(v) of the SC/ST (POA) Act, 1989. 2. Challenging the illegality of the order of conviction and sentence, the appellant being the first accused in the Sessions case in S.C.No.65 of 2007 (P.R.C.No.34 of 2007 on the file of the Judicial Magistrate No.5, Tirunelveli and Cr.No.146 of 2007 on the file of the Munneerpallam Police Station), has preferred this appeal before this Court after invoking the provisions of Section 374 (2) Cr.P.C. 3. It appears from the records that the second accused in the above said case one Jesu Palraj was absent for a long time and since he had been absconding, a non bailable warrant was issued and the same has also been pending for a long time. Therefore, the case against the second accused Jesu Palraj was split up separately and assigned S.C.No.38 of 2008 on the file of the II Additional Sessions Judge, Tirunelveli. 4. The main case in S.C.No.65 of 2007 was tried as against the first accused David Stephen, who is the appellant herein and ultimately ended in conviction as afore stated. 5. The Deputy Superintendent of Police, Cheranmahadevi, had lodged a final report against both the accused, viz., David Stephen and Jesu Palraj alleging that they had committed the offences punishable under Sections 449, 294(b), 302 r/w 34 I.P.C. and Section 3(2)(v) of SC/ST (POA) Act, 1989. 6. The learned II Additional Sessions Judge, based on the materials placed before him, had framed as nearly as four charges, viz., under Sections 449, 294(b), 302 r/w 34 I.P.C., and under Sections 3(2)(v) of SC/ST (PA) Act, 1989 as against both the accused and when the ingredients of the charges were questioned, they pleaded innocence and wanted to face the trial. 7. 7. The prosecution in order to prove their case have totally examined 17 witnesses and during the course of their examination, Exs.P.1 to P.24 were marked and besides this, six material objects were also marked. Apart from this, one court witness C.W.1 was also examined. The Gravamen of the Prosecution Case:- 8. P.W.1 Packiyaraj is the close associate of the deceased Karnan @ Karunakaran. P.W.2 Sigamani Seelan is the brother-in-law of the deceased, whereas P.W.3 Chellathai is the mother of the deceased. P.W.1 Packiyaraj and P.W.3 Chellathai and the deceased are the residents of Araikulam Village. 9. The appellant/A1 and other accused are also the residents of Araikulam Village and belonged to Christian Nadar Community. 10. The deceased and P.W.2 Sigamani Seelan are belonging to Schedule Caste. The deceased Karnan @ Karunakaran's brother one Mathi Mathew is doing business in Bombay. 11. That on 13.5.2007 for the purpose of construction of a Church a foundation stone was laid, for which, the said Mathi Mathew had donated a sum of Rs.5,00,000/-. 12. By way of expressing gratitude, P.W.1 and the deceased had printed wall-posters and pasted them. 13. Similarly, the accused 1 and 2, who are belonging to Araikulam Nadar Peravai, had also printed separate posters and pasted them. 14. Under these circumstances, the appellant/A1 and A2 had torn the posters pasted by P.W.1 and the deceased. On seeing this, P.W.1 and the deceased had questioned them. For this, the appellant/A1 and A2 had threatened the deceased with dire consequences that they would not leave him without killing. Then P.W.1 and others had pacified them and on account of this reason, the appellant/A1 and A2 had developed a grudge upon the deceased over the development of his family. Thereafter, the brother of the deceased Mathi Mathew had left for Bombay. 15. That on 11.6.2007 at about 9.45 p.m., P.W.1 had ridden a motor cycle, while P.W.2 was sitting on the pillion. The deceased Karnan @ Karunakaran had also ridden his motor cycle. Both of them were proceeding to Araikulam. 16. At about 10.00 p.m., the deceased had parked his motor cycle in the portico of his house, while P.Ws.1 and 2 were standing outside the compound. At that time, portico light as well as the street lights were burning. While so, the appellant/A1 and A2 armed with Aruval in their respective hands had rushed to the portico and attacked the deceased. At that time, portico light as well as the street lights were burning. While so, the appellant/A1 and A2 armed with Aruval in their respective hands had rushed to the portico and attacked the deceased. The appellant/A1 had declared that, “TAMIL” by saying so, he had cut with Aruval over his head. 17. The second accused had also declared that, “TAMIL” by saying so he had cut the deceased on the upper left leg as well as the right leg. 18. When the deceased had warded off with his left hand, that cut fallen over his left hand and left fingers and apart from this, he had also received cut injuries over his left ear. 19. Again, the appellant/A1 had cut over his left face with Aruval and the second accused had also cut him over his left wrist and on the dorsal aspect of the lower right leg. 20. After receiving the cut injuries, the deceased Karnan @ Karunakaran had slided down. On seeing this, P.Ws.1 and 2 had made shouting as “Don't cut, Don't cut” and rushed to the place of occurrence. 21. P.W.3, who is none other than the mother of the deceased, Chellathai, and another witness one Koil Pillai had also made shouting and rushed towards the place of occurrence and on seeing them, the appellant/A1 as well as the second accused had fled away from the scene of occurrence towards the eastern side. 22. Soon after the occurrence, P.W.1 had asked P.W.2 to bring an auto and he had also brought an auto, which was proceeding on the way, and immediately, the deceased was taken to the Palayamkottai Govt. Hospital by P.Ws.1 and 2 and admitted therein at about 10.55 p.m. 23. P.W.7 Dr. Nagalakshmi, Assistant Surgeon, who was on duty in the Government Medical College and Hospital, Tirunelveli, had examined the injured, who was brought to her by P.W.1, at 10.55 p.m. 24. When enquired, she was informed by P.W.1 that at about 10.00 p.m., the injured was attacked by two known persons with Aruval. During the course of her examination, the injured was found unconscious. Pulse was feeble. B.P. Rate was 90/?. When enquired, she was informed by P.W.1 that at about 10.00 p.m., the injured was attacked by two known persons with Aruval. During the course of her examination, the injured was found unconscious. Pulse was feeble. B.P. Rate was 90/?. She had also found the following injuries on his person:- “a. From the left anterior part of eye over left side of face on the scalp extending upto the left lead upto back left ear 15x3x3 cm exposing the muscle lying bones present deep tissue. b. Left side ear was cut including the ear lobe from the cut portion of the ear pushed behind. c. Laceration above the Right eye extending into Scalp 8x2x1 cm. d. Laceration back of Right neck 6x1x1 cm. e. Laceration back of scalp above No.4 – 6x1x1 cm. f. Cut injury Right ear upper part 2x.5x.5 cm. 25. In this connection, she had issued an Accident Register under Ex.P.8. 26. At about 12.00 midnight, P.W.15 Head Constable Ramasamy attached to Munneerpallam Police Station, had received a message, which was sent by the Govt. Hospital Tirunelveli, to the out police station, through VHF, informing that the injured Karnan @ Karunakaran had been admitted in the hospital with cut injuries. 27. On receipt of this message, P.W.15 had been to the Government Medical College and Hospital and since the deceased was not in a condition of speaking, he had received a oral statement from P.W.1, which was reduced into writing by him under Ex.P.1. 28. P.W.2 had also signed in Ex.P.1 as a witness at about 1.00 a.m. on 12.6.2007. Thereafter, P.W.15 came down to the police station. At about 2.00 a.m. and registered a case in Cr.No.146 of 2007 on the file of the Munneerpallam Police Station under Sections 452, 294(b), 326 and 307 I.P.C. 29. The printed First Information Report under Ex.P.17 along with Ex.P.1 were sent to the learned Judicial Magistrate No.V, Tirunelveli, through P.W.12 Grade I Police Constable, who had received the above said documents at 7.00 a.m. on 12.6.2007 and handed over the same to the concerned Magistrate. 30. P.W.16, Inspector of Police had received the copies of Ex.P.1 as well as Ex.P.17 at 3.45 a.m., from P.W.15. When he was present in the police station he had received an intimation, through VHF from P.W.8 Dr. 30. P.W.16, Inspector of Police had received the copies of Ex.P.1 as well as Ex.P.17 at 3.45 a.m., from P.W.15. When he was present in the police station he had received an intimation, through VHF from P.W.8 Dr. Amalan, Assistant Surgeon, Government Medical College and Hospital at 4.00 p.m. saying that the injured Karnan @ Karunakaran had passed away. 31. Immediately, he had sent P.W.14 Head Constable Sudalai Muthu to the Govt. Hospital to receive the death intimation (Ex.P.9). 32. Accordingly, P.W.14 had been there and received the death intimation under Ex.P.9 and handed over it to P.W.16 at 6.00 a.m. 33. In pursuant to Ex.P.9 Death Intimation, P.W.16 had altered the section of law under Section 452, 294(b), 326 and 302 I.P.C. instead of 307 I.P.C. and the alteration report Ex.P.18 was sent to the learned Judicial Magistrate No.5, Tirunelveli. 34. At about 7.00 a.m., P.W.16 along with P.W.15 had been to the place of occurrence and inspected the same in the presence of P.W.4 and one Rathinasamy (not examined) and prepared an observation mahazar Ex.P.2 and a rough sketch, which was marked as Ex.P.19. 35. He had also seized blood stained cement earth and unbloodstained cement earth under M.Os.3 and 4 respectively under the cover of seizure mahazar Ex.P.3. Then he had been to the Government Medical College and Hospital, Tirunelveli at about 9.30 a.m, and started conducting an inquest on the dead body in the presence of panchayatadars and after the completion of the inquest, he had also prepared a report under Ex.P.20 and thereafter, the dead body was sent to the post mortem examination with a requisition through P.W.14 Head Constable Sudalai Muthu. 36. In pursuant to the requisition made by P.W.16, P.W.11, Dr. Paramasivam, who is the Professor of Forensic Medicine, attached to the Government Medical College and Hospital, Tirunelveli, had conducted the post mortem examination on the dead body of Karnan @ Karunakaran. The examination was commenced at 12.50 p.m. During the course of his examination, he had found the following injuries both external as well as internal on the dead body of the deceased:- “Moderately nourished body of a male. Finger and toe nails pale. Head shaven. Injuries noted:- a. Sutured wound 10 cm long seen on the right frontal region. It is bone deep. b. 4 cm long sutured wound front of right ear. Finger and toe nails pale. Head shaven. Injuries noted:- a. Sutured wound 10 cm long seen on the right frontal region. It is bone deep. b. 4 cm long sutured wound front of right ear. c. 15 cm long sutured wound x bone deep on the left side of scalp above the left ear. d. 7 cm long sutured wound seen above the left ear. e. 1 x .5 cm cut injury seen on the left wrist. Cut injuries seen on the lateral 3 fingers of left palm. f. 4 cm long sutured wound seen on the left side of neck. g. 8 cm long sutured wound seen on the right ankle in front. On dissection of Scalp: Diffuse blood clots seen on the frontal region of scalp on both sides. 15 cm long cut injury to the parietal region on both sides. Thin subarachnoid haemorrhage seen over major portions of cerebral hemispheres.” 37. After the completion of the post mortem examination, he had issued a certificate under Ex.P.13 expressing his opinion that the deceased would appear to have died of complications of head injuries. 38. Thereafter, he had obtained the community certificates in respect of the accused persons, viz., David Stephen/A1 (appellant herein) and Jesu Palraj saying that they belong to Christian Nadar Community under Ex.P.10 as well as Ex.P.11 from P.W.9 Tahsildar and he had also obtained a community certificate in respect of the deceased Karnan @ Karunakaran saying that he belongs to Hindu Schedule Caste under Ex.P.12 from P.W.10 Tahsildar. 39. Then, he had also examined the remaining witnesses and recorded their statements including P.Ws.9 and 10 Tahsildars. 40. P.W.16 was informed that on 13.6.2007 the appellant/A1 and A2 had surrendered before the learned Judicial Magistrate, Eraniel and therefore, he had given a requisition before the learned Judicial Magistrate No.5, on 20.6.2007 to take the appellant/A1 as well as the second accused into police custody. 41. In pursuant to the order passed in the said requisition, the appellant as well as the second accused were taken into police custody on 21.6.2007 and they were interrogated in the presence of P.W.5 Vijayadurai and one Panneerselvam. 42. While so, they both had voluntarily given their respective confessional statements and in pursuant to their disclosure statements, the crime weapons under M.Os. 1 and 2 were recovered at the instance of the appellant/A1 and the second accused. 42. While so, they both had voluntarily given their respective confessional statements and in pursuant to their disclosure statements, the crime weapons under M.Os. 1 and 2 were recovered at the instance of the appellant/A1 and the second accused. Thereafter, the appellant/A1 and the second accused were produced before the learned Judicial Magistrate No.5, Tirunelveli. 43. Based on Exs.P.10, P.11 and P.12 Community Certificates, P.W.16 had altered the charges under Sections 452, 294(b), 326 and 302 I.P.C. and Section 3(2)(v) of SC/ST (POA), Act, 1989 and the alteration report under Ex.P.22 was sent to the learned Judicial Magistrate No.5, Tirunelveli. 44. Since the Section 3(2)(v) of SC/ST (POA) Act, 1989 was added, the case records were sent to the Deputy Superintendent of Police, Cheramahadevli and prior to this all the incriminating articles were sent to forensic laboratory for chemical examination through the learned Judicial Magistrate and obtained the Biology Report as well as Chemical Examination Report under Ex.P.23 and P.24 respectively. 45. P.W.17 Deputy Superintendent of Police had taken up the case for further investigation and after the completion of his investigation, he had laid the charge sheet as against the appellant/A1 as well as A2 on 10.7.2007 under Sections 452, 294(b), 302 r/w 34 I.P.C. and Section 3(2)(v) of SC/ST (POA) Act, 1989. 46. With the evidence of P.W.17, the prosecution had closed its side. 47. When the incriminating circumstances arising out of the testimonies of the prosecution witnesses were put to the appellant/A1 during the course of the proceedings under Section 313(1) (b) Cr.P.C., (the case against the second accused was split up, as the NBW was pending, separately as S.C.No.38 of 2007), the appellant/A1 replied that he had nothing to do with the allegations levelled against him and this case was foisted against him. 48. He had also submitted a written statement under Section 233(2) Cr.P.C. and the same was recorded. Thereafter, on receipt of the summons from the court one Durai Singh, Head Constable attached to out police station of Palayamkottai Medical College and Hospital had appeared before the Court and produced the Intimation Register and the relevant entries under S.Nos.1386 and 1392 were marked as Exs.C1 and C2. Besides this, Exs.D1 and D2 were also marked on behalf of the appellant. 49. Besides this, Exs.D1 and D2 were also marked on behalf of the appellant. 49. On appreciation of the evidences both oral and documentary and on considering the submissions made on behalf of both sides, the learned trial Judge had proceeded to found the appellant/A1 guilty under Section 302 r/w 34 I.P.C and convicted and sentenced as afore stated and the appellant/A1 was acquitted of the charges under Sections 449, 294(b) I.P.C. and Section 3(2)(v) of SC/ST (POA) Act, 1989. 50. Heard Mr.P.H.Pandian, learned counsel appearing for the appellant/A1 and Mr.T.Mohan learned Additional Public Prosecutor appearing for the State. 51. Before we go to the merits of the case, we find that it may be more significant to refer the charges levelled against the the appellant/A1 as well as A2 by P.W.17 Deputy Superintendent of Police, Cheranmahadevi. 52. As per the charge sheet, the case of the prosecution is that the deceased Karnan @ Karunakaran son of Rajaiah of Araikulam belongs to Hindu Parayar community (since deceased). The appellant/A1 David Stephen and the second accused Jesu Palraj are belonging to Christian Nadar Community. 53. With regard to the construction of a Church, there was an enmity between the deceased and the appellant/A1 and A2. One Mathi Maathew, who is none other than the brother of the deceased Karnan @ Karunakaran had donated a sum of Rs.5.00 lakhs for the construction of the Church. 54. In expressing their gratitude, the villagers including P.W.1 and the deceased had printed and pasted the posters praising Mathi Mathew. That posters were torn by the appellant/A1 and A2. Therefore, a verbal altercation was taken place between them and subsequently, they were pacified by P.W.1 and others, who were present there and while moving from there, both the appellant/A1 and A2 had declared that he (deceased) would not be left without killing. 55. At about 10.00 p.m., on 11.6.2007, the deceased Karnan @ Karunakaran had been to his house in his motor cycle and he was followed by P.Ws.1 and 2 in their motor cycle and when the deceased was parking his motor cycle in his portico, in furtherance of their common intention to do away with the life of the deceased, the appellant/A1 and A2 armed with Aruval had criminally trespassed into the house of the deceased and assaulted him with Aruval. At that time, the Appellant/A1 had declared that “TAMIL”. 56. At that time, the Appellant/A1 had declared that “TAMIL”. 56. Why we have taken the risk of repetition of charge is that a specific charge has been framed under Section 449 of I.P.C. as against the appellant/A1 as well as the second accused with regard to their criminal trespass. But this charge was found to be unproved by the learned trial Judge and in consequence thereof, the appellant/A1 was acquitted. 57. In this connection, Mr.P.H. Pandian, learned Senior Counsel appearing for the appellant at the first instance had raised a crucial question saying that when the charge relating to criminal house trespass in order to committing of any offence punishable with death, has been found unproved, the remaining charges levelled against the appellant/A1 ought to have been found as not proved and the appellant/A1 ought to have been acquitted of all the charges. 58. Because the specific charge is that the appellant/A1 and A2 had trespassed into the house of the deceased, while he was parking his motor cycle in his portico and hacked the deceased to death. 59. As per the evidence of P.Ws.1 and 2, the house of the deceased is encircled by a compound wall on all four sides and the entire area including the house is under the exclusive possession of the deceased and his mother P.W.3. The appellant/A1 and A2 had gained entry through the compound gate armed with Aruval with the criminal intention to commit the murder of the deceased and accordingly, they rushed to the portico and assaulted the deceased with Aruval. 60. What Section 449 I.P.C. envisages is, whoever commits house-trespass in order to commit any offence punishable with death, shall be punished with imprisonment for life, or with rigorous imprisonment for a term not exceeding ten years, and shall also be liable to fine. 61. The term house trespass simple and apart from anything else is made punishable under Section 448 I.P.C. and this section is followed by Sections 449, 450, 451, which provide for the higher punishments for the offence of house-trespass when it is committed “in order to commit” some offence of the nature specified in these Sections. 62. In Matiullah Sheikh vs. The State of West Bengal ( AIR 1965 SC 132 ), the appellants were alleged to have entered the house of one with the intention of killing him. 62. In Matiullah Sheikh vs. The State of West Bengal ( AIR 1965 SC 132 ), the appellants were alleged to have entered the house of one with the intention of killing him. One of the appellants injured E with dagger while the other three held him. E's injury did not prove fatal. The Sessions Judge convicted them under Sections 449 and 337 with Section 34 of the Indian Penal Code, which on appeal was upheld by the High Court. On appeal by certificate, it was contended that there can be no conviction under Section 449 of the Indian Penal Code unless murder actually been committed and that a charge under Section 307 read with Section 34 of the Indian Penal Code was not sustainable in law. 63. Considering this contention, a three Judges' Bench of the Hon'ble Apex Court has held that there was no substance in either of these contentions. An act can be said to be committed “in order to the committing of an offence” even though the offence may not be completed. The words “in order to” have been used in Section 449 I.P.C. to mean “with the purpose of”. Whether or not the purpose was actually accomplished is quite irrelevant. Once it is decided that the act is so done by number of persons in furtherance of the common intention of all, the legal position that results is each person shall be held to have committed the entire criminal act. 64. Here, without entering into the compound wall, which consisting of two gates in the middle as it is revealed from the evidence of P.Ws.1 to 3, the appellant/A1 and A2 could not have gone into portico, where the deceased was parking his motor cycle. Therefore, the term house trespass includes the compound wall of the house for the purpose of Section 449 I.P.C., and the same is certainly made out in this case. The moment when they gained entry into the compound wall with the common criminal intention of committing murder of the deceased, the offence under Section 449 I.P.C. commences. The portico and the house are inseparable as it form part of the house and it cannot be said that the portico is not a dwelling place. 65. As afore stated without entering the compound, they could not have gone into the portico and hacked the deceased to death. 66. The portico and the house are inseparable as it form part of the house and it cannot be said that the portico is not a dwelling place. 65. As afore stated without entering the compound, they could not have gone into the portico and hacked the deceased to death. 66. It is also very much relevant to refer to the observation made by the learned trial Judge in this regard. In paragraph 26 of his judgment, the learned trial Judge has observed that, “with regard to the charge under Section 449 I.P.C. is concerned that the evidence on record show that the occurrence took place in the portico of the house of the deceased and as the deceased arriving at him and while he was parking his vehicle in the portico, the accused assaulted him. 67. It is relevant to read Section 442 I.P.C. which defines “House Trespass” reads as follows:- “Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a place used as a human dwelling or any building used as a place of worship or as a place of custody of property, is said to commit house trespass.” 68. From the bare reading of the motion 442 I.P.C., it is clear that the portico cannot be termed as a building and it is only an outer part attached to any building and is not a dwelling place. 69. The observation with regard to the dwelling place made by the learned trial Judge with reference to Section 442 I.P.C., is absolutely wrong and it is totally a misconception of law. 70. In Prempal Singh vs. Mohan Lal ( 1981 CrLJ 1208 ), it is observed that the offence of criminal trespass may be aggravated in several ways. It may be aggravated by the way in which it is committed, and by the end for which it is committed. When the trespass as defined in Section 441 is committed on a building, tent or vessel used as a human dwelling etc. It attracts a heavier penalty. House-trespass is an aggravated form of criminal trespass. The main aim or object of entry on the property of the other by the person accused of an offence of criminal trespass should be to commit an offence or to annoy, intimidate or insult a person in possession of that property. It attracts a heavier penalty. House-trespass is an aggravated form of criminal trespass. The main aim or object of entry on the property of the other by the person accused of an offence of criminal trespass should be to commit an offence or to annoy, intimidate or insult a person in possession of that property. It is not sufficient for the purpose to show merely that the likely or natural consequence of such an entry could be annoyance, intimidation or insult and that such likely consequence was known to the person entering. Such intention, aim or object of the person entering is to be gathered from the particular facts and circumstances of each case. 71. On coming to the present case on hand, from the testimonies of P.Ws.1 and 2 as well as P.W.3 and from the conduct of the appellant/A1 and A2, it is imperative on the part of this Court that an inference is necessarily to be drawn that the main aim or object of entry on the property of the deceased by the appellant/A1 and A2 should be to commit an offence of murdering the deceased. Since the act of the appellant/A1 and A2 appear to be an aggravated one, we find that the appellant/A1 along with A2 had committed the offence under Sections 449 I.P.C. and therefore, the finding of the learned trial Judge is absolutely wrong and liable to be set aside. 72. As argued by Mr.P.H. Pandian, the whole case rests upon the testimonies of P.Ws.1 to 3. P.W.1 is the close friend of the deceased, whereas P.W.2 happens to be brother-in-law of the deceased and P.W.3 is none other than the mother of the deceased. 73. In this connection, Mr.P.H.Pandian, has mainly questioned the credibility of the evidence given by P.W.1. In so far as the first information is concerned, he has argued that material alteration is found in the first information report and that there was ample time for P.W.1 to fabricate and confabulate the first information report. 74. 73. In this connection, Mr.P.H.Pandian, has mainly questioned the credibility of the evidence given by P.W.1. In so far as the first information is concerned, he has argued that material alteration is found in the first information report and that there was ample time for P.W.1 to fabricate and confabulate the first information report. 74. He has also submitted that according to the prosecution witnesses mainly, according to P.Ws.1 and 2, the occurrence was completed within half a minute and therefore, he would submit that since P.Ws.1 and 2 were standing outside the compound of the deceased, they could not have seen the occurrence and that P.Ws.1 and 2 are lacking the competency to describe the injuries said to have been inflicted by the appellant/A1 and A2. 75. He has also submitted that P.W.3 Chellathai is the age old woman and at age of 75 years, she could not have seen the occurrence as she might have losing her power of vision. 76. In so far as the first information is concerned, soon after the completion of the occurrence, P.W.1 had asked P.W.2 to bring an auto and accordingly, P.W.2 had brought an auto rickshaw, which was proceeding on the way and subsequently, they had taken the deceased to the Govt. Medical College and Hospital. 77. P.W.7 Dr. Nagalakshmi says that at about 10.55 p.m. the injured was brought to the hospital by P.W.1 and he only had informed her that the injured Karnan @ Karunakaran was attacked by two known persons with Aruval. She has also ratified that the injured was not conscious and thereafter, he was admitted as an inpatient. 78. P.W.15 Head Constable Ramasamy has deposed that at about 12.00 midnight on 11.6.2007 when he had received the intimation through VHF from the out police station attached to the Govt. Medical College and Hospital, Tirunelveli and after receiving the information, he had been to the hospital and seen the deceased. 79. While so, he was not found in a condition of speaking. Therefore, he had recorded the statement (Ex.P.1) from P.W.1. at about 1.00 a.m. At about 2.00 a.m., he came down to the police station and registered a case in Cr.No.146 of 2007. Thereafter, the copies of Ex.P.1 and Printed F.I.R. Ex.P.17 were sent to the Court, viz., the learned Judicial Magistrate No.5, Tirunelveli, through P.W.12 Grade I Constable. 80. Therefore, he had recorded the statement (Ex.P.1) from P.W.1. at about 1.00 a.m. At about 2.00 a.m., he came down to the police station and registered a case in Cr.No.146 of 2007. Thereafter, the copies of Ex.P.1 and Printed F.I.R. Ex.P.17 were sent to the Court, viz., the learned Judicial Magistrate No.5, Tirunelveli, through P.W.12 Grade I Constable. 80. As per the evidence of P.W.12, at about 7.00 a.m., on 12.6.2007, he had received Ex.P.1 and Ex.P.17 and handed over the same to the Magistrate concerned. 81. On a careful perusal of Ex.P.1, we do not find any material alteration. But in the printed F.I.R., which has been marked as Ex.P.17, we find one alteration in respect of the injured person. 82. On a careful scrutiny of this alteration, we find that it is feeble in nature and it is not a material alteration as argued by Mr.P.H. Pandian. Therefore, in this connection, the arguments advanced by Mr.P.H. Pandian are found to be force less. 83. As it is seen from the printed F.I.R Ex.P.17, the learned Judicial Magistrate had received the first information report at 8.30 a.m. P.W.12 says that he had received the complaint Ex.P.1 and the F.I.R. Ex.P.17 from P.W.16 at 7.00 a.m., on 12.6.2007. Therefore, P.W.12 had taken 1 ½ hours to hand over Ex.P.1 and Ex.P.17 to the learned Judicial Magistrate. From the above context, we find that there is some delay in handing over the F.I.R. Ex.P.17 from the police station to the Magistrate Court, but we do not find that it is fatal to the prosecution case. 84. Apart from this, though the statement was recorded from P.W.1 at 1.00 a.m., the case was registered only at 2.00 a.m., and therefore, there is one hour delay in the registration of the case. 85. Despite the case was registered at 2.00 a.m., on 12.6.2007, it was only despatched at 7.00 a.m. and reached the Court at 8.30 a.m. However, on assessing the overall circumstances arising out of the testimonies of P.Ws.1, 2, 7, 12 and 15, we find that the above said delays cannot be construed as material in nature to suspect the genesis of the first information. 86. 86. We find no delay in taking the injured to the hospital and we find no embellishment in the evidence of P.W.7 and the delay in reaching the court cannot be construed as fatal to the prosecution case and it cannot also be presumed that the complaint Ex.P.1 and F.I.R. Ex.P.17 could have been concocted after confabulation as argued by Mr.P.H. Pandian, because the testimonies of P.Ws.1 to 3 are natural and we do not see any infirmity and contradiction and confliction in between the testimonies of P.Ws.1 to 3. 87. With regard to the injuries inflicted on the deceased, the evidence given by P.W.7 Dr. Nagalakshmi is fitted in fair congruence with the testimonies of P.Ws.1 and 2. 88. P.W.1 says that the appellant/A1 had cut the deceased with Aruval over his head. The second accused had cut the deceased over his left leg as well as the right leg and when the deceased warded off that cut had fallen over his left hand as well as his left fingers. 89. He has also stated that the second accused had cut the deceased over his left hear and left face and apart from this, the second accused had also cut the deceased over his dorsal aspect of the right leg. This has been corroborated by P.Ws.2 and 3. 90. Even with regard to the site of injuries, we do not find any contradiction between the testimonies of P.Ws.1 and 2. Since P.Ws.2 and 3 are closely related to the deceased their testimonies cannot be discarded on that score. 91. Similarly, since P.W.1 is the close friend of the deceased, his evidence can also not be discarded on this ground. But their evidences have to be closely scrutinized on the test stone. 92. Having made an analytical approach, we find that their testimonies are convincing, cogent and corroborate with each other. 93. The occurrence is said to have been taken place at about 10.00 p.m. on 11.6.2007. The complaint was also lodged on 12.6.2007 at about 1.00 a.m. The evidences of P.Ws.1 to 3 were recorded on 14.2.2008, i.e., within eight months from the date of occurrence. 94. On comparing the testimonies of P.Ws.1 to 3, along with Ex.P.1 First Information, we find slight variation with regard to infliction of injuries by the appellant/A1 and A2. The complaint was also lodged on 12.6.2007 at about 1.00 a.m. The evidences of P.Ws.1 to 3 were recorded on 14.2.2008, i.e., within eight months from the date of occurrence. 94. On comparing the testimonies of P.Ws.1 to 3, along with Ex.P.1 First Information, we find slight variation with regard to infliction of injuries by the appellant/A1 and A2. But it is not material in nature and it would not in any way affect the probabilities of the prosecution case. 95. Ex.P.8 is the accident register issued by P.W.7 Dr. Nagalakshmi in respect of the injuries sustained by the deceased, wherein, she has stated that during the course of her examination, she has found as nearly as the following six injuries:- a. From the left anterior, part of eye over left side of face on the scalp extending upto the left lead upto back left ear 15x3x3 cm exposing the muscle lying bones present deep tissue. b. Left side ear was cut including the ar lobe from the cut portion of the ear pushed behind. c. Laceration above the Right eye extending into Scalp 8x2x1 cm. d. Laceration back of Right neck 6x1x1 cm. e. Laceration back of scalp above No.4 – 6x1x1 cm. f. Cut injury Right ear upper part 2x.5x.5 cm. 96. Dr.Paramasivam P.W.11 happened to conduct the post mortem examination and after the completion of his examination he had issued a certificate under Ex.P.13, wherein he has stated that during his examination, he happened to find the following injuries:- “Moderately nourished body of a male. Finger and toe nails pale. Head shaven. Injuries noted:- a. Sutured wound 10 cm long seen on the right frontal region. It is bone deep. b. 4 cm long sutured wound front of right ear. c. 15 cm long sutured wound x bone deep on the left side of scalp above the left ear. d. 7 cm long sutured wound seen above the left ear. e. 1 x .5 cm cut injury seen on the left wrist. Cut injuries seen on the lateral 3 fingers of left palm. f. 4 cm long sutured wound seen on the left side of neck. g. 8 cm long sutured wound seen on the right ankle in front. On dissection of Scalp: Diffuse blood clots seen on the frontal region of scalp on both sides. Cut injuries seen on the lateral 3 fingers of left palm. f. 4 cm long sutured wound seen on the left side of neck. g. 8 cm long sutured wound seen on the right ankle in front. On dissection of Scalp: Diffuse blood clots seen on the frontal region of scalp on both sides. 15 cm long cut injury to the parietal region on both sides. Thin subarachnoid haemorrhage seen over major portions of cerebral hemispheres.” 97. According to the evidence of P.Ws.1 and 2 as well as P.W.3 both the accused, viz., the appellant/A1 and A2 had inflicted cut injuries over his scalp including the left and right ears. 98. A careful perusal of the post mortem report Ex.P.13, we find that each and every injury will have its own distinctness. 99. Injuries No.1, 2 and 3 are relating to cut injuries inflicted on the right and left ears. Injury No.6 is the 8cm long sutured wound seen on the right ankle in front. Injury No.2 is 15 cm long sutured wound x bone deep on the left side of the scalp above the left ear. Another injury is 4 cm long sutured wound front of the right ear. 100. On dissection of scalp, P.W.11 has found diffuse blood clots on the frontal region of scalp on both sides and 15 cm long cut injury to the parietal region on both sides. Thin subarachnoid haemorrhage seen over major portions of cerebral hemispheres. 101. After the completion of his examination, he has given his opinion saying that the deceased would appear to have died of complications of head injuries. 102. But in this connection, Mr.P.H.Pandian has argued that the prosecution has not clearly established as to who has caused the fatal injuries to the deceased. 103. It is pertinent to note here that the previous enmity has been clearly proved as spoken to by the learned trial Judge in his judgment. 104. When the testimonies of P.Ws.1 to 3 are sufficient to prove the case of the prosecution and corroborate with each other, it cannot be heard to say that the testimonies must be corroborated with another independent evidence. 105. We also find that there is no inconsistency between the testimonies of P.Ws.1 to 3 and the medical evidences and besides this, one more witness Koil Pillai, who is said to be the eye witness has not been examined. 105. We also find that there is no inconsistency between the testimonies of P.Ws.1 to 3 and the medical evidences and besides this, one more witness Koil Pillai, who is said to be the eye witness has not been examined. But the non examination of Ms. Koil Pillai will not falsify the case of the prosecution. 106. It is alleged that there was an illicit intimacy between the deceased Karnan @ Karunakaran and Ms.Koil Pillai. According to the case of the prosecution, she was also present at the time of the occurrence. Even prior to the happening of the occurrence, she was found chatting with P.W.3 mother of the deceased. 107. It is also the case of the defence that since the deceased was having illicit intimacy with Ms.Koil Pillai, the relatives of Koil Pillai might have taken revenge upon the deceased and committed his murder. 108. In the absence of any such evidence, it cannot be construed or imagined that the mere suggestion put by the defence has been proved. 109. Ex.D1 is the first information report relating the case in Cr.No.147 of 2007, dated 13.6.2007. This first information report appears to have been registered based on a complaint lodged by J. Koil Pillai D/o. Josep Nadar, wherein she has stated that on 13.6.2007 at about 8.20 p.m. one Ravi son of Subbaiah had abused her with filthy languages. Therefore, a case was registered under Section 294(b) I.P.C. 110. Ex.D2 is the certified copy of the Judgment, wherein it appears that the said Ravi had admitted the offence and paid the fine amount of Rs.200/-. 111. In this connection Mr.P.H. Pandian has canvassed that the the said Ravi and his relatives in order to wreak vengeance upon the said Koil Pillai, would have committed the criminality and in this connection, he has urged that the prosecution has miserably failed to prove the guilt of the appellant/A1 and A2. 112. The learned Additional Public Prosecutor Mr. T. Mohan, has adverted to that the learned trial Judge ought to have found all the charges proved against the appellant/A1 and in this connection, he would submit that though unassailable and unimpeachable evidences are available, the learned trial Judge had lost sight upon the charges under Section 294(b), 449 of I.P.C., and Section 3(2)(v) of SC/ST (PA) Act, 1989. 113. 113. He has also urged that the prosecuting agency has brought home the guilt against the accused beyond all reasonable doubts and that the accused shall have to be dealt with according to the penal provisions of law. 114. We have carefully considered the relevant circumstances in which the occurrence was taken place and closely scrutinised the testimonies of the prosecution witnesses including the documentary evidences. 115. Having been appreciated the evidences available on record, and on perusal of the Judgment of the trial Court, we find that the charge under Section 449 I.P.C. has been proved by the prosecution, besides the charge under Section 302 r/w 34 I.P.C. 116. It is established that both the accused, viz., the appellant/A1 and A2 were having common intention to do away with the life of the deceased and in furtherance of their common intention, they had trespassed into the premises of the deceased and hacked him to death by inflicting cut injuries on his vital part, viz., head, indiscriminately. 117. We, therefore, find that the finding of the trial Court with regard to the non proving of the offence under Section 449 I.P.C. is liable to be set aside. In other aspect, the finding of the learned trial Judge remains undisturbed. 118. In the result, a. The criminal appeal is dismissed. b. While we confirming the conviction and sentence under Section 302 r/w 34 I.P.C., we also find the appellant guilty under Section 449 I.P.C., and accordingly, the appellant/A1 is also convicted for the offence under Section 449 I.P.C. and sentenced to suffer seven years of rigorous imprisonment and also to pay a fine of Rs.1000, in default, to suffer a further period of one year rigorous imprisonment. 119. The sentence of seven years R.I., imposed under Section 449 I.P.C., is directed to run concurrently along with the sentence imposed on him under Section 302 r/w 34 I.P.C. If the appellant is on bail, the learned trial Judge, viz., II Additional Sessions Judge, Tirunelveli, is directed to issue a warrant of arrest and send him to prison to suffer the sentence.