JUDGMENT (Judgment of the Court was delivered by S.NAGAMUTHU, J.) The appellants are the accused 1 to 3 in S.C.No.3 of 2010 on the file of the learned Additional District Judge, Fast Track Court, Virudhunagar. The first accused stood charged for the offences under Section 302 IPC and the accused 2 and 3 stood charged for offences under Sections 342, 302 read with 34 IPC. By judgment dated 17.06.2010, the trial Court convicted the first accused under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for six months and convicted the accused 2 and 3 under Section 342, 302 r/w 34 IPC and sentenced them to undergo simple imprisonment for three months for the offence under Section 342 IPC and sentenced them to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for six months for the offence under Section 302 r/w 34 IPC. Challenging the said conviction and sentence, the appellants are before this Court with this appeal. 2. The case of the prosecution in brief is as follows: The deceased in this case was one Mr.Selvam. P.W.1 is his wife and P.W.2 is his mother. They were all residing at Varalotti Village in Virudhunagar District. The wife of the first accused is one Mrs.Rajathi. The deceased had developed illicit intimacy with Mrs.Rajaji. Therefore, the first accused had developed grudges against the deceased. This is stated to be the motive for the occurrence. 2.1. On 19.07.2009, at about 11.00 p.m., the deceased had returned from Virudhunagar and after taking food, he was sleeping on the pial of the house. P.Ws.1 and 2 were also sleeping on the same pial by the side of the deceased. At about, 11.30 p.m., all the three accused emerged there. The first accused had aruval in his hands and the accused 2 and 3 were unarmed. The accused 2 and 3 held the deceased and the first accused mounted repeated attacks with aruval on his body. The deceased cried for help. P.Ws.1 and 2 also raised alarm. The first accused intimidated P.W.1 by brandishing aruval. Then, all the three accused fled away from the scene of occurrence. The deceased was lying in a pool of blood. Immediately, P.Ws.1 and 2 informed the father of P.W.1. The deceased cried for help. P.Ws.1 and 2 also raised alarm. The first accused intimidated P.W.1 by brandishing aruval. Then, all the three accused fled away from the scene of occurrence. The deceased was lying in a pool of blood. Immediately, P.Ws.1 and 2 informed the father of P.W.1. He made arrangement for 108 ambulance. They shifted the deceased to the hospital. Accordingly, the deceased was taken to the Government Hospital at Virudhunagar. 2.2. To the Doctor (P.W.11), at the Government Hospital, Virudhunagar, the deceased told that he was attacked by three known persons. P.W.11, noticed the following injuries: 1. A large cut injury over the left side of cheek extend from left border of sternum upto the top the left shoulder. 2. Another cut injury over the left arm 10 cm x 8 cm x 5 cm. 3. Cut injury over the nose (the projection part of nose bring separate) Elevation part of the nose absent. 4. Another cut injury over the right side of upper lip with missing of little muscle. 5. Another cut injury over the cheek curve shape size 5 cm x 2 cm x 1 cm. 6. Another cut injury over the forehead on the scalp 8 cm x 2 cm x 2 cm. 7. A lacerated cut injury over the right side of back near center of back internal organ seen (nc) the injury exposing of lung seen through the injury. 8. Another cut injury over right palm size 5 x 2 x 1 cm. 9. Another cut injury over little, index, finger with ?fracture of middle phalanx. 10. Another cut injury over the right thumb near the middle of the finger with bleeding 2 cm x 1 cm x 0.5 cm. Ex.P9 is the accident Register. 2.3. After first aid treatment, the Doctor referred him to the Government Rajaji Hospital at Madurai for further treatment. At about 4.00 a.m., he was admitted as in-patient. Intimation was sent by the hospital authorities both to the police as well as to the learned Magistrate in respect of the same. 2.4. P.W.10 the then Judicial Magistrate No.3, Madurai, rushed to the Government Rajaji Hospital, at 4.30 a.m., and recorded the dying declaration of the deceased. It was completed at 4.50 a.m. on 20.07.2009. P.W.10 reduced the same into writing. 2.4. P.W.10 the then Judicial Magistrate No.3, Madurai, rushed to the Government Rajaji Hospital, at 4.30 a.m., and recorded the dying declaration of the deceased. It was completed at 4.50 a.m. on 20.07.2009. P.W.10 reduced the same into writing. One Dr.Thirumalaimurugan, who was attending on the deceased, gave opinion that the deceased was in a fit state of mind to make dying declaration. On his part, P.W.10 also satisfied about the mental fitness of the deceased. Then, he recorded the dying declaration. Ex.P8 is the said dying declaration. 2.5. P.W.16 the then Head Constable attached to the Mallanginaru police station rushed to the hospital at 11.30 a.m., on 20.07.2009 and recorded the statement of P.W.1, as the deceased was taken to the operation theatre. On returning to the police station, he registered a case in Crime No.127 of 2009 under Sections 342, 324 and 307 IPC at 11.30 a.m. Ex.P14 is the FIR. He forwarded Ex.P1 and Ex.P14 to the Court and handed over the case diary to the Inspector of Police for investigation. 2.6. P.W.20, took up the case for investigation and proceeded to the place of occurrence. At 1.00 p.m., on 20.07.2009, he prepared an observation mahazar and a rough sketch showing the place of occurrence, in the presence of P.W.6 and another witness. He examined P.Ws.1 and 2 and few more witnesses on the spot. He also recovered the bloodstained earth and sample earth from the place of occurrence. On the same day, he arrested the 2nd accused in the presence of P.W.7 and another witness. Then, on the same day at 4.00 p.m., he arrested the accused 1 and 3 in the presence of P.W.9 and another witness. On such arrest, the first accused gave a voluntary confession, in which, he disclosed the place, where he had hidden the aruval. In pursuance of the said statement, the first accused took P.W.20 and the witnesses to Varalotti Bus Stop and produced an aruval (M.O.1) from the hide out. The same was recovered. 2.7. The deceased, who had undergone surgery, was shifted from the ICU ward to the regular ward and after 28 days, due to the complications, he died. P.W.20 conducted inquest on the body of the deceased on 16.08.2009 between 8.00 a.m. and 10.30 a.m. Then, he forwarded the body for postmortem. 2.8. The same was recovered. 2.7. The deceased, who had undergone surgery, was shifted from the ICU ward to the regular ward and after 28 days, due to the complications, he died. P.W.20 conducted inquest on the body of the deceased on 16.08.2009 between 8.00 a.m. and 10.30 a.m. Then, he forwarded the body for postmortem. 2.8. P.W.12 – Dr.Alaudeen conducted autopsy on the body of the deceased on 16.08.2009 at 12.30 p.m. He found the following injuries:-1.Partly healed infected cut wound on left shoulder extending to left anterior chest wall 20 cms x 1.5 cm x bone deep. 2.Partly healed infected cut wound on nose extending to lips & chin 10 cms x 2 cms x bone deep. 3. Partly healed infected cut wound on left arm 6 cms x 2 cms x bone deep. On dissection, the proximal humerus is found repaired surginally. 4. Partly healed infected cut wound on right postero lateral aspect of chest wall 15 cms x 2 cms x muscle deep. 5.Partly healed laparotomy wound in front of the abdomen. 6. Intercostal drainage wound on both lateral chest wall. Ex.P10 is the postmortem certificate. He gave opinion that the deceased would appear to have died of multiple cut injuries and the complications thereof. 2.9. Continuing the investigation, P.W.20 forwarded the material objects to the Court and made a request to the Court for forwarding the same for chemical examination. Ex.P12 is the chemical examination report and Ex.P13 is the serology report. According to these reports, there was human blood of 'A' origin found on the aruval, lungi as well as on the bill hook. On completing the investigation, P.W.20 laid charge sheet against the accused. 3. Based on the above materials, the trial Court framed charges as detailed in the first paragraph of this judgment. The accused denied the same. In order to prove the case, on the side of the prosecution, 20 witnesses were examined, 24 documents and 4 material objects were marked. 4. Out of the said witnesses, P.W.1 is the wife of the deceased. P.W.2 is the mother of the deceased, who have vividly spoken about the occurrence as eye witnesses. P.W.3 is the neighbour of the deceased, who has stated that at the time of occurrence, he heard a hue and cry from the house of the deceased. 4. Out of the said witnesses, P.W.1 is the wife of the deceased. P.W.2 is the mother of the deceased, who have vividly spoken about the occurrence as eye witnesses. P.W.3 is the neighbour of the deceased, who has stated that at the time of occurrence, he heard a hue and cry from the house of the deceased. When he went there, he found the deceased was in a serious condition in a pool of blood. Then, he arranged for ambulance to take the deceased to the hospital. P.W.4 has turned hostile and he has not supported the case of the prosecution. P.W.5 is the father of P.W.1. He has stated that on receiving information about the occurrence, he rushed to the place of occurrence, arranged for ambulance and took the deceased to the hospital. P.W.6 has spoken about the preparation of the observation mahazar, the rough sketch and the recovery of the bloodstained earth and sample earth from the place of occurrence. P.W.7 has turned hostile and he has not supported the case of the prosecution. P.W.8 has also not stated anything incriminating against the accused. P.W.9 has spoken about the arrest of the accused 1 and 3, the confession made by the first accused and the consequential discovery of the aruval. P.W.10 is the learned Judicial Magistrate recorded the dying declaration. He has vividly spoken about the same. 4.1. P.W.11 – Dr.Samiappan has stated that at Virudhunagar Hospital at about 12.30 a.m. on 20.07.2009, the deceased was brought in 108 ambulance service by his wife for treatment and after first aid treatment, he referred the deceased to the Government Rajaji Hospital. P.W.12 is the Doctor, who conducted autopsy on the body of the deceased. He has spoken about the same and his final opinion regarding the cause of death. P.W.13 is the Head Clerk of the Magistrate Court, who forwarded the material objects for chemical examination. P.W.14 the Head Constable attached to Mallanginaru Police station has stated that he gave intimation to the police that the deceased was admitted in the hospital. P.W.15 is the Constable, who carried the body for postmortem. P.W.16 is the Head Constable, who registered the case. P.W.17 has stated that he accompany P.Ws.1 and 2 to take the deceased to the hospital. P.Ws.18 and 19 have turned hostile and they have not supported the case of the prosecution in any manner. P.W.15 is the Constable, who carried the body for postmortem. P.W.16 is the Head Constable, who registered the case. P.W.17 has stated that he accompany P.Ws.1 and 2 to take the deceased to the hospital. P.Ws.18 and 19 have turned hostile and they have not supported the case of the prosecution in any manner. P.W.20 is the Inspector of Police has spoken about the entire investigation done by him and final report filed. 5. When the incriminating materials were put to the accused under Section 313 Cr.P.C., they denied the same as false. However, on their side, they did not choose to examine any witness nor marked any documents. Their defence was a total denial. Having considered all the above, the trial Court convicted all the three accused. That is how, they are before this Court with this appeal. 6. We have heard the learned counsel for the appellants, the learned Additional Public Prosecutor for the respondent and we have also perused the records carefully. 7. The learned counsel for the appellants would submit that there are lot of flaws in the case of the prosecution, which would create doubts in the case and accordingly the appellants are entitled for acquittal. He would submit that though it is stated that from the Virudhunagar Hospital at about 4.30 a.m., the deceased was taken to the Government Rajaji Hospital, the Doctor, who admitted him has not been examined. Thus, according to him, the earliest information passed on to the Doctor had not been produced. He would further submit that whether the deceased was in a fit state of mind, at the time, when he was admitted or not has been suppressed, because of the non production of the Accident Register as well as subsequent treatment records maintained in the hospital. The learned counsel would submit that P.Ws.1 and 2 would not have been present at all at the time of occurrence. He would further submit that there was no motive at all for these accused to commit the murder of the deceased. In the alternative, the learned counsel would submit that at the most, so far as the first accused is concerned, the offences would fall only under Section 304(i) IPC and the others are concerned, absolutely, there is no evidence, he has contended. 8. The learned Additional Public Prosecutor would vehemently oppose this appeal. In the alternative, the learned counsel would submit that at the most, so far as the first accused is concerned, the offences would fall only under Section 304(i) IPC and the others are concerned, absolutely, there is no evidence, he has contended. 8. The learned Additional Public Prosecutor would vehemently oppose this appeal. According to him, there are no reasons to reject the evidences of P.Ws.1 and 2, whose evidences are highly convincing and cogent. He would further submit that the dying declaration recorded by the learned Judicial Magistrate cannot be discorded for any reason, wherein the deceased had categorically stated that these three accused attacked him. He would further submit that at the earliest point of time, when the deceased was taken to the Government Hospital, Virudhunagar, the deceased told him that he was attacked by three known persons. Thus, the medical evidence also corroborates the eye witness account. Thus, according to the learned Additional Public Prosecutor, the prosecution has clearly proved the involvement of these accused. Thus, the conviction and sentence do not require any interference at the hands of this Court. 9. We have considered the above submissions. 10. The alleged occurrence had taken place at the house of the deceased, i.e. on the pial. P.Ws.1 and 2 are the women folk in the family. The occurrence was at 11.30 p.m. Therefore, it was quite natural for these two women ought to have been present at the house of the deceased. Thus, the presence of P.Ws.1 and 2 at the time of occurrence cannot be doubted. Now, the next question is P.Ws.1 and 2 could be believed. In our considered view, they can be believed though not fully but partly. P.Ws.1 and 2 have stated that the accused 2 and 3 held the deceased tightly so as to facilitate the first accused to cut the deceased. If we look into the postmortem certificate, it would go to show that there are number of injuries on the body of the deceased. In our considered view, when two persons are holding the deceased so tightly, it would not have been possible for so many number of injuries on so many parts on the body of the deceased. Thus, it is crystal clear that the evidences of these two witnesses stating that the accused 2 and 3 caught holding the deceased is doubtful. In our considered view, when two persons are holding the deceased so tightly, it would not have been possible for so many number of injuries on so many parts on the body of the deceased. Thus, it is crystal clear that the evidences of these two witnesses stating that the accused 2 and 3 caught holding the deceased is doubtful. But on that score, their evidences against the first accused cannot be discarded. 11. It is too well settled that in Indian scenerio, the principle of 'falsus in uno falsus in omni bus' is inapplicable [vide Gangadhar Behera and others vs. State of Orissa reported in (AIR (2002) 8 (SCC) 381 ]. In a case, if the Court is able to separate the grain from the chaff, there would be no impediment either legal or factual to act upon the facts so culled out from the evidences of such witnesses. In this case, therefore, though we are not in a position to believe P.Ws.1 and 2 as against the accused 2 and 3, on that score, we cannot discord the evidences of P.Ws.1 and 2 as against the first accused. 12. In Vadivelu Thevar vs. State of Madras reported in AIR 1957 C.614), the hon'ble Supreme Court has held that if the witnesses are partly believable and partly unbelievable, prudence requires that the Court cannot test the conviction on the basis of the said evidences alone, unless the same draws corroboration from independent sources. Applying the said principle to the facts of the present case, let us now examine, whether the evidences of P.Ws.1 and 2, as against the first accused draws corroboration from any other sources. After the occurrence, P.Ws.1 and 2, had taken the deceased to the hospital. In the Accident Register, (Ex.P9), P.W.11 has entered that the deceased was brought only by these two people. At that time, the deceased was conscious. He told that he was attacked by three known persons. This statement of the deceased also given support to the evidences of P.Ws.1 and 2 as against the first accused. 13. Then, comes the judicial dying declaration recorded by the learned Magistrate under Ex.P8. In Ex.P8, the deceased had stated that three accused came, out of whom, one was having a stick and he did not notice as to what was the weapon held by the other two persons. 13. Then, comes the judicial dying declaration recorded by the learned Magistrate under Ex.P8. In Ex.P8, the deceased had stated that three accused came, out of whom, one was having a stick and he did not notice as to what was the weapon held by the other two persons. He has further stated that within a fraction of time, the occurrence had taken place. He has made a very general statement that out of suspicion he was attacked. He has not at all stated that the accused 2 and 3 held the deceased. He has also not stated that the first accused cut him. Thus, the dying declaration under Ex.P8 does not in any manner go to corroborate the evidences of P.Ws.1 and 2 as against the accused 2 and 3. But to some extent, it gives corroboration to the evidences of P.Ws.1 and 2. Though the dying declaration is a substantive piece of evidence, upon which, conviction can be rendered, here in this case, it is not possible, because, the dying declaration is not only bereft of details but the same is very silent, as to who attacked him. Therefore, Ex.P8 cannot be given any weightage at all. Now, what remains is the evidence of P.Ws.1 and 2 drawing corroboration from the earliest statement made by the deceased and drawing corroboration in part from Ex.P8. 14. Then, comes the recovery of the aruval, which contained bloodstains. This also lends assurance to the case of the prosecution. Thus, from the evidences of P.Ws.1 and 2, the prosecution has succeeded in establishing that the deceased was cut by the first accused and the prosecution has further failed to prove the case against the accused 2 and 3. 15. Now, the immediate next question is as to what is the offence that the first accused had committed by his act. According to the Doctor, the death occurred after 28 days of the occurrence. Unfortunately, the medical records pertaining to the treatment given to the deceased have not been produced in evidence. Similarly, the Doctors, who treated him in the hospital, have not been examined. The Doctor, who conducted surgery on the deceased, also has not been examined. Therefore, this Court is not in a position to find as to what was the condition of the deceased for 28 days. Similarly, the Doctors, who treated him in the hospital, have not been examined. The Doctor, who conducted surgery on the deceased, also has not been examined. Therefore, this Court is not in a position to find as to what was the condition of the deceased for 28 days. This Court is also not in a position to know as to whether the deceased was conscious and he was making any statement. P.W.1 had stated that the deceased was in coma for about 10 days. P.W.1 is an illiterate woman, therefore, we cannot give much weightage on this part of her evidence. In our considered view, in the absence of production of medical records pertaining to the treatment given to the deceased in the hospital for 28 days, it is too difficult to know the condition of the deceased and the precise cause for the death. 16. The Doctor, P.W.12, who conducted autopsy, had found that there were lot of infections almost in all the injuries. It is stated that the injuries were partly healed. There was infection found in the surgical wound. The peritoneum was infected. Thus, according to the Doctor, death was due to septicemia (Complications). To this extent, the prosecution has succeeded. 17. Now, the question is whether the death was caused by the first accused. It cannot be said that the septicemia was not on account of the injuries caused by the first accused. It was because of the injuries caused by the first accused, inspite of medical supervision, which ultimately resulted in the death of the deceased. Therefore, there is no difficulty to hold that it is the first accused, who caused the death of the deceased. 18. Now, let us examine about the nature of the injuries caused by the first accused. If we closely look into these injuries, except one injury, all the others are simple in nature. The death was not directly due to these injuries. The death was also not due to shock and hemorrhage due to these injuries. The Doctor has not opined that these injuries would cumulatively cause death in the ordinary course of nature. For a moment, we are not prepared to say that it is always for the Doctor to say as to whether the particular injury would be sufficient in the ordinary course of nature to cause death of an individual. The Doctor has not opined that these injuries would cumulatively cause death in the ordinary course of nature. For a moment, we are not prepared to say that it is always for the Doctor to say as to whether the particular injury would be sufficient in the ordinary course of nature to cause death of an individual. Ultimately, it is the task of the Court to give verdict as to whether the particular injury or the injuries put together cumulatively is sufficient to cause death of the deceased or not. In the light of the absence of any positive evidence from the Doctor that the injuries are sufficient in the ordinary course of nature to cause death, if we look into these injuries, since the injuries are on the peripheries and except one injury, all the injuries are simple, we find it difficult to conclude that these injuries are sufficient in the ordinary course of nature to cause death, as dealt with in limb 3 of Section 300 IPC. 19. At the same time, we are of the firm view that these injuries in the ordinary course of nature would likely to cause death falling within the 2nd limb of Section 299 IPC. Therefore, in our considered view, the offence committed by the first accused is only culpable homicide and it does not amount to murder. In other words, the act of the accused falls within the 2nd limb of Section 299 IPC, which does not fall under any one of the limbs of Section 300 IPC at all. Therefore, the first accused is liable to be convicted only under Section 304(i) IPC. 20. Now, turning to the quantum of punishment, the learned counsel for the appellants would submit that the first accused has got three children to take care of. The occurrence itself was on account of the fact that the deceased had developed illicit intimacy with the wife of the first accused. He would further submit that it was out of a kind of provocation. Though, the learned counsel states that it was out of sustained provocation, we find it difficult to accept the same. The first accused has got no history of any bad antecedents. Subsequent to the occurrence also, he has not committed any crime. He would further submit that it was out of a kind of provocation. Though, the learned counsel states that it was out of sustained provocation, we find it difficult to accept the same. The first accused has got no history of any bad antecedents. Subsequent to the occurrence also, he has not committed any crime. Having regard to these mitigating as well as aggravating circumstances, we are of the view that sentencing the first accused to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/-would meet the ends of justice. 21. In the result, the criminal appeal is partly allowed in the following terms: (i) The conviction and sentence imposed on the appellants 2 and 3/accused 2 and 3 are set aside and they are acquitted of all the charges. The fine amount, if any paid by them, shall be refunded to them. Bail bonds shall stand terminated. (ii) The conviction and sentence imposed on the first appellant/first accused under Section 302 IPC is set aside and instead, he is convicted under Section 304(i) IPC and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/-(Rupees ten thousand only), in default, to undergo rigorous imprisonment for two months. (iii) The trial Court shall take steps to secure the first accused/first appellant to commit him in prison to serve out the remaining period of sentence. (iv) It is directed that the period of sentence already undergone by the first accused is ordered to be set off under Section 428 Cr.P.C.