JUDGMENT : This Criminal Appeal has been preferred against the judgment and conviction made by the District and Sessions Judge, Mayiladuthurai in S.C.No.202 of 2010, by judgment dated 22.10.2013, by and under which, the Trial Court has convicted A1, A2 and A4 and sentenced to undergo punishment of simple imprisonment for one year each, for the offence under Sections 323 IPC and also convicted A3 and sentenced to undergo the punishment of rigorous imprisonment of seven years with fine of Rs.500/- in default to undergo further sentence of two years rigorous imprisonment, for the offences punishable under Section 304 (Part-1) of IPC. 2. The prosecution case before the Trial Court was that, on 16.06.2010 at about 10.00 p.m., the deceased Elangovan on the way to his home with alleged drunken mood, picked up quarrel with his cousin sister one Sujatha, on the night hours at 10.00 p.m., when she was sitting outside of her house, which was opposite to the deceased house at Valan Theru in Mela-Sitharkadu for the alleged reason that, at the late hours since she was sitting out side at home. At that time, the A1 father of the said Sujatha, A2 to A4 brothers of her came and attacked the deceased Elangovan and it was witnessed by the deceased wife Amutha, P.W.1 and deceased brother Satishkumar, P.W.2, and they came and rescued the deceased and they took him to their home. 3. It is the further case of the prosecution that, in the next day at about 10.00 a.m., the victim was brought to Mayiladuthurai Government Hospital and admitted by P.W.1 and at the time of admission of the deceased at the hospital, the P.W.1 reported to the Doctor that, previous day night the deceased fell down, when he was cycling, with the result, he sustained injuries. Based on the said report of P.W.1, the victim was admitted at the hospital at 10.25 a.m., on 17.06.2010 and at that time, it was not treated as Medico Legal case and the deceased was continuously treated as inpatient at the hospital. Based on the said report of P.W.1, the victim was admitted at the hospital at 10.25 a.m., on 17.06.2010 and at that time, it was not treated as Medico Legal case and the deceased was continuously treated as inpatient at the hospital. However, at about 10.15 p.m. on 17.06.2010, the condition of the deceased was worsen and when the same was brought to the notice of P.W.1., she informed to the Doctor that on previous night, the deceased was attacked by A1 to A4 with the result, he sustained these injuries and therefore, accordingly, appropriate treatment can be given to him. Inspite of continuous treatment, shortly, i.e., at about 10.45 p.m., on the same day, the deceased died. 4. Accordingly, the deceased body was kept in mortuary for postmortem and thereafter, the next day early morning, i.e., on 18.06.2010, the P.W.1 and P.W.3, one Sekar went to the respondent police and the P.W.1, had given the complaint, based on which, FIR was registered and on investigation, the accused A1 to A4 were arrested and on the basis of the evidence, charge sheet was filed against the accused persons for the alleged offences punishable under Section 302 IPC against A3 and 302 read with 34 of IPC against A1, A2 and A4. The Trial Court, after having tried the case, in the impugned judgment convicted and sentenced A1, A2 and A4, for one year simple imprisonment for the offence punishable under Section 323 of IPC and convicted and sentenced A3 for seven years Rigorous imprisonment with fine of Rs.500/- in default to undergo further rigorous imprisonment of two years, for the offence punishable under Section 304 (Part 1) of IPC. Aggrieved over the said judgment and conviction of the Trial Court made against the accused, they preferred this appeal. 5. On behalf of the prosecution, 12 witnesses were examined i.e., P.W.1 to P.W.12, 21 exhibits were marked i.e., Exs.P1 to P21 and three M.Os. were produced i.e., M.O.1 to M.O.3. There had been no defence witnesses or exhibits. 6. Mr.V.Kasinatha Bharathi, learned counsel for the appellants/accused raised the following grounds assailing the conviction and sentence made against the appellants/ accused. 7. Even though the alleged occurrence taken place at about 10.00 p.m. on 16.06.2010, no complaint was given on the side of the deceased and even after the death on 17.06.2010 night, at about 10.45p.m., there was no immediate complaint. 7. Even though the alleged occurrence taken place at about 10.00 p.m. on 16.06.2010, no complaint was given on the side of the deceased and even after the death on 17.06.2010 night, at about 10.45p.m., there was no immediate complaint. In view of the delay in making the complaint, the prosecution case became defective. 8. Learned counsel would further submit that, inspite of the injury sustained by the victim, who later became deceased, no steps were taken to take him to hospital, for taking treatment and in fact, he was allowed to take rest and according to the P.W.1 and P.W.2, the victim slept well at the night. 9. He would further submit that, P.W.1, wife of the victim, who had taken him and admitted in the hospital, could have very well given the reason of the alleged incident taken place at the previous night, instead, she had chosen to state that, her husband fell down from the bicycle and accordingly, sustained injuries and only in the night on 17.06.2010 at about 10.15p.m. she allegedly stated that, he sustained injuries because of the incident taken place on the previous night. Therefore, it is a clear after thought, on the part of the victim side or the said story planted by the prosecution is only to cover up the actual happening taken place on the said day. 10. Learned counsel would also urge that, the Mahazar witnesses for arrest of the accused and recovery of the M.O.1., had not supported the case as they have become hostile. Therefore, the prosecution has completely failed to establish the link of the allegations made against A3 that, he used crowbar (M.O.1) to cause injury on the victim and because of which, the death was occurred. 11. Learned counsel for the appellant/accused would further submit that, as per the complaint given by P.W.1, the P.W.2, brother of the deceased, warned her husband which shows that, P.W.2 also attacked his brother. He further submits that, the P.W.2, who is none other than the brother of the victim and who came to be one of the eye witness, had not cared about the health condition of his brother. He further submits that, the P.W.2, who is none other than the brother of the victim and who came to be one of the eye witness, had not cared about the health condition of his brother. The P.W.2 in the next day morning i.e., on 17.06.2010 started attending his regular work, as per his evidence, and he never turned to hospital to see his brother and he further deposed that, he came to the hospital only after the death of his brother. Therefore, there had been a chance and a strong suspicion revolving, the P.W.2, brother of the victim, who could have inflicted injury on his brother of course while dragging him towards his house on the previous night incident. 12. Learned counsel appearing for the accused/appellants would further submit that, the victim is the asthma patient and he is also a drunker, on the day of occurrence also, he had come home with alcohol influence, with the result, there had been a chance of falling down and because of which, he could have sustained injuries on his body, especially on his head which could be very well possible as per the evidence of the Doctor, who has answered in the affirmative to the suggestions made before him by the defence side, however, these aspects had not at all been taken into account by the Trial Court. 13. By raising all these grounds, the learned counsel for the appellant/accused would submit that, the prosecution has not proved their case beyond reasonable doubt and there had been a number of contradictions available in the case records which combinedly go to show that, the charge made against the accused persons had not at all been proved before the Trial Court beyond doubt and therefore, the accused are entitled to seek for acquittal. 14. On the other hand, Mr. P.Shanmuga Rajeswaran, learned Government Advocate (Crl.side) appearing for the prosecution would submit that, on receipt of the complaint on 18.06.2010, at about 4.30 hrs. FIR was registered and immediately, the prosecution started investigating the case. A1 to A4 were arrested and their confession statements were recorded and the material objects were seized. P.W.11, investigating officer had examined 10 witnesses and recorded their statements. Thereafter, the P.W.12, the then inspector of police, took up the case for further investigation and he had examined 5 witnesses and recorded their statements. A1 to A4 were arrested and their confession statements were recorded and the material objects were seized. P.W.11, investigating officer had examined 10 witnesses and recorded their statements. Thereafter, the P.W.12, the then inspector of police, took up the case for further investigation and he had examined 5 witnesses and recorded their statements. Subsequently, after getting legal opinion from the Assistant Director of Prosecution, Nagapattinam, P.W.12 altered the Sections into 323, 302 and 302 read with 34 of IPC. After completing the investigation, he had laid a charge sheet before the Judicial Magistrate-I, Myladuthurai and the same was taken on file vide P.R.C.No.31 of 2010 and then it was committed to the learned District and Sessions Judge, Nagapattinam, which was numbered as S.C.No.202 of 2010. 15. Learned Government Advocate would further submit that, in order to prove the case of the prosecution, 12 witnesses were examined 21 exhibits were marked, three material objects were produced. Even though two of the witnesses namely, P.W.4 and P.W.5, Mahazar witnesses, turned hostile, that would no way affect the case of the prosecution because, P.W.1 and P.W.2 are the eye witnesses and they fully supported the case of the prosecution and the doctors witnesses i.e., P.W.9 and P.W.10 speak about the admission and the treatment given to the deceased and also the result of the Post mortem conducted over the deceased. Therefore, considering all these evidences where the prosecution was able to prove the guilt of the accused persons against the deceased, the Trial Court had convicted the appellant/accused. The learned Government Advocate would further submit that, even though the Trial Court had accepted the case of the prosecution and evidentiary value, however, had concluded that no doubt the death was caused to the deceased only because of the head injury he sustained, which was inflicted only by A3, who had used the M.O.1, Crowbar, however, he had no intention to murder the deceased and therefore, learned Trial Court Judge had concluded that the A3 has to be punished not under Section 302 of IPC but only under Section 304 (Part I) of IPC. Like that, the Trial Court has accepted the case of the prosecution in so far as the overt act on the part of the A1, A2 and A4, who also over powered the deceased and therefore, there guilt had been proved beyond reasonable doubt before the Trial Court for the offence punishable under Section 323 of IPC. Therefore, the learned Judge has rightly concluded that, all the accused are guilty of the offences and are punishable, accordingly, A3 was punished for the offence under Section 304(Part I) of IPC and other accused were punished under Section 323 of IPC. Hence, the said punishment, conviction and sentence inflicted on the accused persons requires no interference from this Court. Hence, the appeal is liable to be dismissed. 16. I have considered the said arguments advanced by both the learned counsel for the parties and also I have perused the case records placed before this Court. 17. Out of 12 witnesses, who have been examined on behalf of the prosecution, only P.W.1 and P.W.2, according to the prosecution, are the eye witnesses. It is the case of the prosecution that, on 16.06.2010 at about 10.00 p.m., the victim namely Elangovan, husband of P.W.1 and brother of P.W.2, had picked up quarrel with his cousin sister one Sujatha, who was sitting at the out side of her house in the night hours, with the result A1 father of the girl, A2 to A4 brothers of the girl, came and attacked the deceased. According to the prosecution, the house of the victim was just opposite to the accused house where, the P.W.1 and P.W.2 were residing and they witnessed these occurrence and after the victim was beaten by accused persons as projected by the prosecution, both P.W.1 and P.W.2, came for rescue and taken the deceased to his home. 18. In this context, according to the P.W.1 and P.W.2, after taking the deceased to home, he slept well, which means, the whole night there had been no trouble at all. 19. 18. In this context, according to the P.W.1 and P.W.2, after taking the deceased to home, he slept well, which means, the whole night there had been no trouble at all. 19. Only the next day morning, since the deceased made some complaint about his health condition, he was taken to hospital by P.W.1 and admitted him at 10.25 a.m. on 17.06.2010 and at the time of admission, the P.W.1 made a statement before the Doctor that, previous day, the deceased fell down from the bicycle, that is why, he sustained some injuries and accordingly, he was admitted as inpatient in the hospital as a Non Medico Legal Case (Non-MLC). 20. It is the further case of the prosecution that, at about 10.15 p.m. on 17.06.2010, the condition of the victim was deteriorated and when the same was intimated to the P.W.1., she in fact started saying that, previous night, her husband was attacked by the accused persons. Therefore, only after the said information, the doctor had registered the same as Medico Legal Case. However, within a shortest period i.e., at about 10.45p.m., he was dead. 21. In this context, the evidence of P.W.1, can be examined. The following evidence of P.W.1, in the chief examination can be looked into: “TAMIL” 22. The next eye witnesses is P.W.2, who is the brother of the deceased, he has made the following deposition in chief examination: “TAMIL” 23. In his cross examination, he has stated the following: “TAMIL” 24. Since these two witnesses i.e., P.W.1 and P.W.2 are eye witnesses, their evidences are crucial in this case. P.W.1 is the wife and P.W.2 is the brother of the victim. The house of the victim as well as the house of the accused are just opposite houses. It was claimed by P.W.1 and P.W.2 that, the entire episode where, the victim came in a drunken mood and he, on seeing his cousin sister sitting in front side of the house, had picked up quarrel with her, and in fact, he had beaten her and thereafter, the accused came one by one and started attacking the victim. Even though P.W.1 and P.W.2 claim that, they saw these occurrences and their house is just opposite to the house of the accused, they did not go either to rescue the victim or to prevent the accused from attacking the deceased. Even though P.W.1 and P.W.2 claim that, they saw these occurrences and their house is just opposite to the house of the accused, they did not go either to rescue the victim or to prevent the accused from attacking the deceased. Further, the P.W.1, in her chief examination says that, A3 hit the deceased with crowbar at the back head of the victim whereas, the P.W.2 did not say that A3, used any crowbar and attacked the victim. 25. Further, both P.W.1 and P.W.2 say that, they dragged the victim to their home and the whole night, the victim slept peacefully without any compliant. 26. The next day morning only the P.W.1, took the victim to the hospital, however, P.W.2, the brother of the victim did not mind about either taking him to the hospital or atleast to accompany P.W.1 to assist her, being the male member to take the victim to the hospital. Further, it is to be noted that, if at all A1 to A4 attacked the victim at a time and A3 used crowbar and attacked the victim at the back head and because of which, the victim sustained injuries, definitely the P.W.1, the wife of the victim, should have stated these positions and the occurrence to the hospital authorities at the time of admitting the deceased. Instead, the P.W.1, had chosen to make a statement that, due to the fall from the bicycle, her husband sustained injuries. Absolutely, no reason has been given by the prosecution through P.W.1 that, on what basis and for what reason, the incident taken place on the previous night was not disclosed to the doctor/hospital authorities, at the time of admitting her husband. 27. When that being the position, only at night i.e., at about 10.15p.m., what prompted the P.W.1, to make the statement that, because of the alleged attack made by the accused persons, the victim sustained injuries, has also not been spelt out. 28. In this context, the admission case sheet i.e., Ex.P-9, dated 17.06.2010 states that, the victim was admitted on 17.06.2010 at 10.25a.m.. The hospital case sheet which is Ex.P10, suggests that, the victim i.e., Elangovan was admitted with alcohol withdrawal syndrome, Ex.P14, Accident Register of the victim states that, the victim expired on 17.06.2010 at 10.45 p.m.. There also, it has been mentioned that, alcohol withdrawal syndrome, fell and fits. The hospital case sheet which is Ex.P10, suggests that, the victim i.e., Elangovan was admitted with alcohol withdrawal syndrome, Ex.P14, Accident Register of the victim states that, the victim expired on 17.06.2010 at 10.45 p.m.. There also, it has been mentioned that, alcohol withdrawal syndrome, fell and fits. It further states that at 10.45 p.m., the death of the victim was informed to P.W.1, who, on receipt of the information, has signed in the accident register and that has been recorded. Whereas, in the said recording of the acknowledgement of P.W.1 about the news of the death of her husband, it is mentioned as 17.06.2010 at 10.25a.m. stating that the P.W.1., accepted that, she was informed that her husband’s health condition was serious. In order to appreciate in better manner, the said statements recorded in the accident register of Elangovan i.e., Ex.P-11, is extracted hereunder: “TAMIL” Died on 17.6.10 at 10.25 AM “TAMIL” 29. Normally, accident register would start from the time of admission which, according to the prosecution was 10.25 a.m., on 17.06.2010. According to the doctors, at about 10.15 p.m., the condition of the deceased was deteriorated and it was informed to P.W.1.. Whereas in Ex.P11, first it says that at about 10.45p.m., the deceased died and it was informed to P.W.1, and thereafter, it says that at 10.25 a.m. on 17.06.2010, the critical condition of the victim was informed to P.W.1. On perusal of this Ex.P11, it creates suspicion, as at what time, the victim was admitted and at what time his condition was deteriorated and at what time, it was informed to P.W.1 and at what time exactly he died, have not been properly recorded in Ex.P11. 30. In this context, it is pertinent to note that the inspector of police, who was the investigating officer, on 17.07.2010 (Ex.P-12), has written a letter, to the Chief Medical Officer, Government Hospital, Mayiladuthurai and the said letter reads thus: “TAMIL” 31. In respect of the aforesaid letter, the said medical officer replied to the Inspector of Police on 20.07.2010 (Ex.P-13), which reads thus: “TAMIL” 32. In respect of the aforesaid letter, the said medical officer replied to the Inspector of Police on 20.07.2010 (Ex.P-13), which reads thus: “TAMIL” 32. Once a patient is admitted with injuries and it has also been mentioned that, he was admitted with alcohol withdrawal syndrome and the medical report says that, there had been aberrations and injuries at the back head and chest part of the victim, if at all, the victim was admitted at 10.25 a.m. on 17.06.2010, continuous treatment as inpatient could have been given to him and in this regard, nothing has been projected by the prosecution through the medical witnesses that, what treatment had been given to the victim from morning to night. 33. Moreover, the P.W.9, doctor, in his evidence has stated that, at the time of admitting the victim on 17.06.2010 at 10.25 a.m., he had not admitted him as a Medico legal patient but, he has admitted only as Non-medico legal patient. 34. Even though it was stated by P.W.1 that, because her husband fell down from the bicycle he sustained injuries, on examination of nature of injuries as well as the effect of such injuries, certainly, the doctors should have registered as a Medico Legal Case and no acceptable or plausible reason is given by the doctor, for not acting in that way. 35. Further, the P.W.4 and P.W.5, the Mahazar witnesses since had not supported the prosecution case, they have been treated as hostile witnesses and in cross examination, the P.W.4 says the following: “TAMIL” 36. Like that, P.W.5 also was treated as hostile and in his cross examination, he has stated the following: “TAMIL” 37. In Ex.P18, inquest report dated 18.06.2010, the Inspector of Police has stated the following: “TAMIL” 38. However, the P.W.2, Satishkumar, the brother of the victim has made very categorical statement that, on 17.06.2010, at the time his brother was taken to the hospital by P.W.1, he did not accompany her and he had gone to his work. Even when he returned back to home in the night at 8.00p.m., he did not choose to go to the hospital to see his brother and only after getting news that his brother died, he went to the hospital at about 12.p.m. midnight on 18.06.2010 and he has stated that, he has never seen his brother before he dies at the hospital on 17.06.2010. On analysing these aspects, the following suspicion come to the mind of this Court. 39. Firstly, after the occurrence on 17.06.2010 at 10.00 p.m., the victim was brought to his home and he slept well and there had been no complaints of his health condition. Secondly, the next day morning, when he made complaint about his health condition, P.W.2, did not care about that and he had been to his job. Thirdly, at the time of admitting the victim P.W.1, did not tell about what had happened on the previous day night and she recorded a false statement. Absolutely, no reason had been stated by P.W.1/the prosecution, as to why, the P.W.1 had chosen to hide the happenings on the previous night. 40. Next, in the Ex.P11 and also in Ex.P10, it is mentioned that the victim was admitted with alcohol withdrawal syndrome. It says that, he was admitted at 10.25 a.m. on 17.06.2010 and it was claimed further that, the condition of her husband was informed to P.W.1, at the time of admission itself. But the Doctor did not chose to register it as Medico Legal Case. 41. At about 10.15 p.m., it was claimed that the condition was deteriorated and therefore, it was informed to P.W.1. Thereafter, at 10.45p.m., he died. However, when these things where recorded and the acknowledgement of P.W.1 for having knowledge about these happenings, it was not chronologically recorded which creates suspicion. 42. Further, no strong reason had been given by the prosecution side as to why, the P.W.1 and P.W.2, did not join together on 17.06.2010 morning till 17.06.2010 night, for taking the victim to the hospital for treatment and also to make a complaint against the accused persons to the police. The delay caused in making the complaint to the police cannot be easily brushed aside, as projected by the prosecution, that the delay caused in registering the complaint is because of the delay on the part of the complainant, cannot be accepted. 43. In the inquest report, the Inspector of Police has made statement stating that, both P.W.1 and P.W.2 had been all along with the victim and they only took the victim to the hospital and admitted and till the death, the P.W.2 was with the victim. 43. In the inquest report, the Inspector of Police has made statement stating that, both P.W.1 and P.W.2 had been all along with the victim and they only took the victim to the hospital and admitted and till the death, the P.W.2 was with the victim. However, the fact remains that, even according to the evidence of P.W.2, he did not care about the victim on 17.06.2010 morning, and even in the night at about 8.00p.m., when he came to house, he did not chose to see his brother at the hospital. He claims that, only after hearing the news about the death, he went to the hospital and the next day also, he did not go along with P.W.1 to make the complaint because, the P.W.3, the uncle of P.W.1 only accompanied P.W.1, to the police station. 44. These continuous absence on the part of P.W.2 would make definitely a suspicion that the P.W.2, wanted to be away from the victim after 17.06.2010 night and that is why, in the whole episode on 17.06.2010 and also at the time of making complaint on 18.06.2010, he was completely absent. In this regard, the theory of the defence, as projected by way of suggestions while cross examining the P.W.2, can be taken into account. 45. In the hospital case sheet, it was originally mentioned only as 10.25 p.m. on 17.06.2010 is the admission time. This defect infact was pointed out by the Inspector of Police by writing a letter on 17.07.2010, i.e., Ex.P12 and only thereafter, the word a.m.’ has been corrected as ‘p.m.’ and this has been mentioned in Ex.P.13, the reply given by the Chief Medical Officer to the Inspector of Police. 46. Though P.W.1 and P.W.2 claim to be the eye witnesses, the P.W.2 did not suggest that, A3 used the crowbar to attack the victim. Though it was suggested by P.W.1, since she is the wife of the victim and other eye witness, sine did not suggest the same, the evidence of the P.W.1 in this regard cannot be accepted as a sole criteria to fix the overt act on the A3 for inflicting him the punishment for the offence punishable even under Section 304 (Part 1) of IPC. Inspite of all these contradictions, lack in evidence and bundle of suspicion, the Trial Court has given its own reason stating that, the theory of prosecution can be believed and the defence taken by the accused side cannot be accepted. The reason given by the Trial Court Judge for not believing the alternate theory, projected by the defence side reads thus: “12. However submission on behalf of the accused A.1 to A.4 is that once P.W.1- Amutha, wife of victim-deceased Elangovan, mentioned different incident for the fact of causing injury on the victim-deceased Elangovan before P.W.9 admission doctor, the case favourable to the accused A1 to A4, may be considered to decide the prosecution case, alleged on them. As stated above, P.W.1- Amutha, who during admission of victim deceased Elangovan in Government Hospital, Mayiladuthurai, said that Elangovan, falling down from bi-cycle, sustained injury, later narrated the incident, alleged against A.1 to A.4 as to assault on the said deceased Elangovan. In such situation, P.W.2-Satishkumar, brother of victim-deceased Elangovan, as another eye witness, supported the prosecution for its case, alleged against A.1 to A.4 with regard to the assault on the victim-deceased Elangovan. Further, P.W.9-admission doctor, mentioning the fact of receiving the first information from P.W.1-Amudha during the admission of the victim-deceased Elangovan in the Government Hospital, Mayiladuthurai and her further information, made during the period of providing further treatment to the said victim-deceased Elangovan in the said hospital during the fake end of his life, produced Ex.P.9 Accident Register and Ex.P.10 the case sheet about the lacerated injuries on the right lower jaw of victim - deceased Elangovan and the treatment provided to victim-deceased Elangovan. Further, P.W.10, postmortem Doctor, mentioning the lacerated injuries etc., on various parts of body of victim - deceased Elangovan and mentioning contusion on the right head of victim-deceased Elangovan, said with Ex.P.16 postmortem report that the victim - deceased Elangovan, due to the head injury, died. In view of these, the above said defence, cannot be accepted.” 47. The learned Judge mainly relied upon P.W.2, who apart from P.W.1, is one of the eye witness. However, the way in which the P.W.2 acted in this case especially, on the crucial day i.e., on 17.06.2010, from morning to night as explained above, definitely create suspicion in the mind of this court. The learned Judge mainly relied upon P.W.2, who apart from P.W.1, is one of the eye witness. However, the way in which the P.W.2 acted in this case especially, on the crucial day i.e., on 17.06.2010, from morning to night as explained above, definitely create suspicion in the mind of this court. P.W.2, being the brother of the victim, if really intended to save his brother, atleast, he could have assisted the P.W.1, who is the wife of the victim to take the victim to the hospital. Had the P.W.2 gone to the hospital and had given the real reason for sustaining injury of the victim, then we can appreciate the evidence of P.W.2. Here in the case in hand, the P.W.1, did not tell the previous night incident to P.W.9, at the time of admission and P.W.2, had not cared to take the victim to the hospital or accompany with P.W.1.. Even in the night on 17.06.2010, when he returned back to home from his work place, P.W.2, did not chose to go to hospital to see his brother. Only after knowing the news that his brother died, he claimed that, he went to the hospital at late night i.e., at 12.00 midnight on 18.06.2010. P.W.2, even did not chose to go along with P.W.1, to give complaint to the police station. 48. These factual matrix definitely would create a great suspicion about the attitude of P.W.2 and therefore, in this context, the theory of defence be given weight-age. Moreover, the only overt act projected by the prosecution side to fix A3, was that he used crowbar to attack the victim. The recovery of the crowbar was not supported by the Mahazar witnesses. One of the eye witness P.W.2, also did not speak anything about A3 was using crowbar. Once, the crowbar was used by A3, who was an youngster certainly, the injury caused by him could have been a very serious injury and the postmortem report does not suggest any such major injury in the head of the victim. 49. Further, the P.W.10, Doctor, who conducted postmortem had answered the suggestion, posed before him in cross examination, which reads thus: “TAMIL” 50. Therefore, there had been no direct evidence to fix such an overt act against A3. 49. Further, the P.W.10, Doctor, who conducted postmortem had answered the suggestion, posed before him in cross examination, which reads thus: “TAMIL” 50. Therefore, there had been no direct evidence to fix such an overt act against A3. However, there had been some injuries caused to the victim, which, either would have been caused by the accused persons as projected by the prosecution or some more injuries or certain injuries could have been caused to the victim because, he was in a drunken mood on the night. 51. Therefore, for such injuries, whether the accused persons can be punished for the offences punishable under Section 323 of IPC and in respect of A3, whether he can be punished under Section 304 (Part 1) of IPC., the answer would be that, A3 cannot be punished for the offences under Section 304(Part 1) of IPC, in view of the failure on the prosecution to prove the case beyond reasonable doubt, since there had been contradictions in the evidences and there had been lacuna in the prosecution theory with the result, there had been number of suspicion in the minds of the Court, hence, this Court feels that, the prosecution has not proved its case beyond reasonable doubt. 52. In view of the aforesaid discussions as well as the reasons stated, this Court is of the considered view that, the learned Trial Court has not considered all these lacunas on the part of the prosecution side in proper perspective. 53. At the same time, because the victim sustained some injuries and atleast the P.W.1, even though she is the wife of the victim, had deposed before the Trial Court that, all the accused persons attacked the victim, the act of the accused persons in causing said injuries had been proved on the strength of the evidences especially, on the basis of the evidence of P.W.1. 54. Therefore, this Court feels that the charge framed against all the accused under section 323 of IPC are proved and they are to be punished for the said offence, therefore, the punishment given to A3 under Section 304(i) of IPC by the trial court was not on the basis of proven charges against him. 55. 54. Therefore, this Court feels that the charge framed against all the accused under section 323 of IPC are proved and they are to be punished for the said offence, therefore, the punishment given to A3 under Section 304(i) of IPC by the trial court was not on the basis of proven charges against him. 55. Since both the accused/appellants as well as the victims are close relatives and taking into consideration of the family circumstance and factual matrix of the case, this Court feel that all the four accused appellants can be punished for the offence punishable under Section 323 of IPC and the portion of the sentenced period which they have already undergone can be imposed as a sentence against all the accused/appellants. 56. In the result, the judgement and conviction made by the Trial Court is hereby modified to the extent that the appellants are punished under Section 323 of IPC and the sentence they have already undergone shall be the punishment for the said offence and accordingly, all the accused/appellants are directed to be set at liberty. The bail bond if any, executed by them shall stand discharged. The appeal is ordered in the above terms.