JUDGMENT : B. PUGALENDHI, J. (Prayer: Appeal is filed under Section 374 of the Code of Criminal Procedure against the Judgment dated 13.04.2016 made in S.C. No. 116 of 2014, on the file of the V Additional District and Sessions Judge, Madurai.) 1. The appellants are accused Nos.1 to 5 in S.C.No.116 of 2014, on the file of the V Additional District and Sessions Judge, Madurai. Totally, there were eleven accused in this case. The Trial Court framed as many as nine charges, as detailed below. Charge Accused Penal Provisions 1 1 to 10 120-B IPC 2 1 to 6, Ramesh [since deceased] and 7 to 10 147 IPC 3 3, Ramesh [since deceased] and 7 to 10 148 IPC 4 1 and 2 342 IPC 5 3 to 5 506(II) IPC 6 1, 2 and 6 to 11 506(II) r/w 149 IPC 7 3 and 4 302 IPC 8 1 to 6, Ramesh [since deceased] and 7 to 10 302 r/w 149 IPC 9 1 to 6, Ramesh [since deceased] and 8 to 10 212 IPC 2. By Judgment dated 13.04.2016, the Trial Court, while acquitting accused Nos.6 to 11, has convicted accused Nos.1 to 5 and sentenced them, as detailed below:- Accused Section of Law Sentence of imprisonment Fine amount 1 and 2 342 IPC To undergo simple imprisonment for six months. No fine. 1 to 5 302 r/w 149 IPC To undergo imprisonment for life. Rs.2,500/- each in default to undergo simple imprisonment for one month. The sentences have been ordered to run concurrently. Neither the State nor the victim has filed any appeal as against the acquittal of accused Nos.6 to 11. Challenging the said conviction and sentence, the appellants have come up with this Criminal Appeal. 3. The case of the prosecution, in brief, is as follows:- Manoharan was the Secretary of Ward No.58 of AIADMK. Murugan @ Mottulu Murugan [A-1], Pandi @ Mottulu Pandi [A-2], Raja [A-3], Balamurugan [A-4], Boominathan [A-5], Ramasubbiramaniyan [A-6], Kannan [A-7], Ramachandran [A-8] and Selvi [A-11] were also members of AIADMK. 3. The case of the prosecution, in brief, is as follows:- Manoharan was the Secretary of Ward No.58 of AIADMK. Murugan @ Mottulu Murugan [A-1], Pandi @ Mottulu Pandi [A-2], Raja [A-3], Balamurugan [A-4], Boominathan [A-5], Ramasubbiramaniyan [A-6], Kannan [A-7], Ramachandran [A-8] and Selvi [A-11] were also members of AIADMK. There were frequent intra-party quarrels between Manoharan and the accused, on account of which, the accused conspired to eliminate Manoharan and in pursuance of the said conspiracy, on 10.06.2012, at around 08.00 PM, accused Nos.1 to 5 and one Ramesh [since deceased] formed an unlawful assembly and wrongfully restrained Manoharan and Raja [A-3] and Balamurugan [A-4] attacked him resulting in serious injuries to him. On hearing the news of the attack on his father, Sudharsan [PW-1] went to the place of occurrence and found his father with bleeding injuries. When asked, Manoharan told him that he was firmly held by Murugan @ Mottulu Murugan [A-1], Pandi @ Mottulu Pandi [A-2] and Boominathan [A-5] exhorted the others to kill him, following which Raja [A-3] cut him on his head with an aruval and the son of Boominathan [A-5] - Balamurugan [A-4] took the aruval from Raja [A-3] and cut him on the back side of the head and hand. Sudharson [PW-1] took his father by an Auto Rickshaw to the Police Station and wrote a complaint [EX-P1], signed by his father and countersigned by him, based on which Sahul Hameed [PW-19], Special Sub-Inspector of Police, registered a case in Crime No.366 of 2012, on 10.06.2012 at 08.30 PM, under Sections 147, 148, 341, 307 and 506(II) IPC and prepared the printed First Information Report [EX-P7]. He sent the injured Manoharan with a police memo to the hospital for treatment. 3.1. Dr.Saravanan [PW-23], who was on duty in the Government Rajaji Hospital, Madurai, examined the injured Manoharan and in his evidence as well in the copy of the Accident Register [EX-P10], has noted as follows:- "Assaulted by five known persons with aruval and knife at 08.00 PM, near Chinthamani Priya Tea Stall. Patient conscious and oriented". 3.1. Dr.Saravanan [PW-23], who was on duty in the Government Rajaji Hospital, Madurai, examined the injured Manoharan and in his evidence as well in the copy of the Accident Register [EX-P10], has noted as follows:- "Assaulted by five known persons with aruval and knife at 08.00 PM, near Chinthamani Priya Tea Stall. Patient conscious and oriented". The following injuries were noted:- "10 X 2 CM cut injury on the left side head 6 X 2 CM cut injury on the parietal region of the head 4 X 2 CM cut injury on the left arm" The injured Manoharan was admitted as an inpatient, but, he succumbed to the injuries at 11.25 PM, on 10.06.2012 in the hospital. 3.2. Sethumanimadhavan [PW-24], the Inspector of Police, took up the investigation of the case and went the place of occurrence and prepared the Observation Mahazar [EX-P12] and Rough Sketch [EXP13]. In the place of occurrence, he seized the bloodstained soil [MO-9] and soil without bloodstain [MO-10] under the cover of mahazar [EX-P14] in the presence of witnesses - Kaleeswaran [PW-16] and Iyyappan [not examined]. On coming to know that Manoharan had died, he altered the case into one under Section 302 IPC and prepared the alteration report [EX-P15]. On 11.06.2012, about 01.00 AM, he conducted inquest on the body of the deceased at the Government Rajaji Hospital, Madurai and prepared the inquest report [EX-P17]. He despatched the body for postmortem. 3.3. Dr.Natarajan, [PW-20] performed autopsy on the body of the deceased and in his evidence as well in the postmortem report [EX-P8], he has stated as under:- "1. An antero posteriorly placed sutured cut injury measuring 10 CM X 1 CM X bone deep noted on left fronto parietal region. 2. A vertical cut injury measuring 8 CM X 1 CM X bone deep noted over mid occipital region. 3. An incised wound 7 CM X linear X muscle deep noted on upper third of back of right forearm. 4. An abrasion of size 2 CM X 1 CM noted on right elbow. On dissection of scalp, skull and dura: Contusion of scalp 10 CM X 2 CM and 8 CM X 2 CM noted on left fronto parietal and mid occipital region respectively. 4. An abrasion of size 2 CM X 1 CM noted on right elbow. On dissection of scalp, skull and dura: Contusion of scalp 10 CM X 2 CM and 8 CM X 2 CM noted on left fronto parietal and mid occipital region respectively. The skull bone was found partially cut on the left fronto, parietal region 10 CM X linear X 2 mm and midoccipital region 8 CM X linear X 2 mm. Diffused subdural hemorrhage & subarachnoid hemorrhage noted over both the cerebral hemispheres. Cut section of brain congested Other Findings: Peritonela cavity - empty; pleural cavities - empty; pericardium - contains 15 ml of straw colur fluid; Heart - right side fluid blood, left side empty; coronaries - patent; lungs - cut section congested; Larynx & trachea - normal; hyoid bone - intact; stomach - contains 200 gms of partially digested cooked food materials, nil specific smell, mucosa - normal; liver, spleen & kidneys - cut section congested; Small intestine - contains 20 ml of bile stained fluid, nil specific smell, mucosa - normal; Bladder - empty; Brain - described in injury column. Opinion: The deceased would appear to have died off cranio cerebral injuries". 3.4. On his [PW-24] transfer, the investigation was continued by Jayachandran [PW-25]. On 11.06.2012, Jayachandran [PW-25] arrested all the accused at various places and on the disclosure statement of Raja [A-3], he recovered a sickle [MO-3], a sword [MO-4], Vettaruval [MO-5], a knife [MO-6], bloodstained white full sleeve shirt [MO-7] and bloodstained lungi [MO-8] under the cover of mahazar [EX-P4]. He sent the seized properties in Form No.95 to the jurisdictional Magistrate. 3.5. On his [PW-25] transfer, the investigation was continued by Umashankar [PW-26], who examined the witnesses, collected various reports and filed final report in PRC.No.67 of 2013 before the learned Judicial Magistrate No.VI, Madurai, under Sections 120-B, 147, 148, 342, 302, 506(II) and 212 r/w 149 IPC against 11 accused. On the appearance of the accused, the provisions of Section 207 of the Code of Criminal Procedure were complied with and the case was committed to the Court of Session in S.C.No.116 of 2014 and made over to the V Additional District and Sessions Judge, Madurai. The Trial Court framed charges against the accused, as detailed in Paragraph No.1 supra. When questioned, the accused pleaded "not guilty". The Trial Court framed charges against the accused, as detailed in Paragraph No.1 supra. When questioned, the accused pleaded "not guilty". To prove the case, the prosecution examined 26 witnesses, marked 20 exhibits and 12 material objects. No witness was examined on the side of the accused nor any document marked. When the accused were questioned about the incriminating circumstances appearing against them, they denied the same. The Trial Court, after considering the evidence on record and hearing either side, by Judgment dated 13.04.2016, convicted the appellants, as detailed in Paragraph No.2 supra and acquitted accused Nos.6 to 11. The appellants are, therefore, before this Court with this Criminal Appeal. 4. Heard the learned counsel appearing for the appellants and the learned Additional Public Prosecutor appearing for the respondent. 5. It is seen that out of 26 witnesses examined by the prosecution, twelve witnesses have turned hostile and the reason is not far to seek. In view of the fact that most of the important witnesses have turned hostile, the case of the prosecution rests mainly on the statement made by Manoharan to his son - Sudharsan [PW-1] and the complaint [EX-P1] given by Manoharan himself to Sahul Hameed [PW-19], Special Sub-Inspector of Police, Avaniyapuram Police Station, which can be treated as dying declarations. 6. As regards the motive for the occurrence, Sudharsan [PW-1], the son of the deceased, has stated that on 04.05.2012, there was a quarrel between Manoharan and Murugan @ Mottulu Murugan [A-1] group in connection with the laying of drainage pipe in the area; this had resulted in a police case and the same was pending; on 10.06.2012, around 08.00 PM, Sudharsan [PW-1] received information from one Rajamani [PW-3] that his father was attacked near Chinthamani Priya Tea Stall; on coming to know of it, he went there and saw his father with bleeding injuries and when he asked, his father told him that Murugan @ Mottulu Murugan [A-1] and Pandi @ Mottulu Pandi [A-2] held him tight and Boominathan [A-5] exhorted Raja [A-3], S/o.Murugan @ Mottulu Murugan [A-1] to attack; accordingly, Raja [A-3] attacked him with a sickle on his head and Balamurugan [A-4], S/o.Boominathan [A-5] took the sickle from Raja [A-3] and attacked him on the back on his head and hand. 7. Vijayalakshmi [PW-17], the wife of the deceased, has stated that her husband was the Secretary of Ward No.58 in AIADMK. 7. Vijayalakshmi [PW-17], the wife of the deceased, has stated that her husband was the Secretary of Ward No.58 in AIADMK. There was a dispute between her husband and Murugan @ Mottulu Murugan [A-1] with regard to the laying of pipes, a month before the date of incident. As regards the actual incident, she heard the news of the attack and went to the Police Station, where the complaint given by her husband was written down by his son - Sudharsan [PW-1]. There has not been any cross-examination of Sudharsan [PW-1] and Vijayalakshmi [PW-17] on the aspect of motive. 8. Duraipandi, [PW-21], Special Sub-Inspector of Police, Avaniyapuram Police Station, was examined to prove about the earlier First Information Reports between the parties. He has stated that on 04.05.2012, around 09.00 PM, Boominathan [A-5] gave a complaint alleging that Manoharan and his brother - Iyyappan had assaulted him and had also attacked his brother-in-law - Murugan with a knife resulting in injuries to Murugan; based on the complaint, a case in Crime No.295 of 2012, under Sections 323, 324 and 506(II) IPC was registered against Manoharan [deceased]; on the next day, namely, 05.05.2012, Manoharan came to the Police Station and lodged a complaint against Boominathan [A-5], based on which, a case in Crime No.298 of 2012 under Sections 294(b) and 506(II) IPC was registered; he conducted investigation in both the cases and closed the case in Crime No.298 of 2012 as "mistake of fact". The First Information Report in Crime No.298 of 2012 was marked as EX-P9, where Murugan @ Mottulu Murugan [A-1] and Boominathan [A-5] have been named as accused. The accused have not disputed this in the crossexamination of Duraipandi [PW-21]. Thus, from the evidence of Sudharsan [PW-1], Vijayalakshmi [PW-17] and Duraipandi [PW-21], it is apparent that there was animosity between Manoharan and the accused party. In fact, the evidence of Duraipandi [PW-21] clearly shows that the case in Crime No.295 of 2012 was registered against Manoharan for the attack on Murugan @ Mottulu Murugan [A-1] and Boominathan [A-5]. In such circumstances, the present attack on Manoharan is, indubitably, a retaliation. 9. As regards the statement given by Manoharan to his son - Sudharsan [PW-1] about the attack and the attackers, the same can be treated as dying declaration. In such circumstances, the present attack on Manoharan is, indubitably, a retaliation. 9. As regards the statement given by Manoharan to his son - Sudharsan [PW-1] about the attack and the attackers, the same can be treated as dying declaration. After the attack, Sudharsan [PW-1] has taken his father to the Police Station, where, on the statement given by his father, Sudharsan [PW-1] wrote the complaint [EX-P1] and gave it to Shahul Hameed [PW-19], the Special Sub-Inspector of Police, who registered the First Information Report [EX-P7]. Shahul Hameed [PW-19], in his evidence, has stated that on 10.06.2012, around 08.30 PM, while he was on duty in Avaniyapuram Police Station, Manoharan came there with bleeding injuries and gave a written complaint, based on which, he registered a case in Crime No.362 of 2012, under Sections 147, 148, 341, 307 and 506(II) IPC and prepared the printed First Information Report [EX-P7]; he sent Manoharan with a police memo to the Government Rajaji Hospital, Madurai, for treatment and despatched the First Information Report [EX-P7] to the learned Judicial Magistrate No.VI, Madurai. On a perusal of the records, it is seen that the First Information Report had reached the jurisdictional Magistrate at 06.45 AM, on 11.06.2012. 10. The learned counsel appearing for the appellants contended that Sudharsan [PW-1] has stated that the complaint [EX-P1] was written in the Police Station, whereas, Shahul Hameed [PW-19] has stated that Sudharsan [PW-1] came to the Police Station with an already prepared complaint. On a reading of the evidence of Sudharsan [PW-1] and Shahul Hameed [PW-19], we find that the evidence of Sudharsan [PW-1] inspires confidence of the Court than the evidence of Shahul Hameed [PW-19] on this aspect. Sudharsan [PW-1] has stated that he took his father in an Auto Rickshaw and came straight to the Police Station and thus, there would not have been any possibility for Sudharsan [PW-1] to write a complaint midway and come to the Police Station along with his father, who was found to be bleeding profusely. The fact that Manoharan came with bleeding injuries has been spoken to by Shahul Hameed [PW-19] also. Though Shahul Hameed [PW-19] has been subjected to a lengthy cross-examination, nothing has been elicited so as to discard his testimony. 11. The fact that Manoharan came with bleeding injuries has been spoken to by Shahul Hameed [PW-19] also. Though Shahul Hameed [PW-19] has been subjected to a lengthy cross-examination, nothing has been elicited so as to discard his testimony. 11. The learned counsel for the appellants further contended that the prosecution have failed to mark the police memo that was issued by Shahul Hameed [PW-19] for hospital treatment. It is true that the police memo has not been marked, but, that will not lead to the inference that Manoharan was not admitted to the hospital at all. Dr.Saravanan, [PW-23], has stated that while he was on duty at the Government Rajaji Hospital, Madurai, he examined Manoharan at 09.17 PM and issued the Accident Register, which has been marked as EX-P10. Even to Dr.Saravanan, [PW-23], Manoharan has stated that he was attacked by five known persons at 08.00 PM, near Chinthamani Priya Tea Stall. 12. The learned counsel also contended that Dr.Saravanan [PW-23], in his evidence, has stated that he examined Manoharan at 09.17 PM, on 10.06.2012 and at that time, he was conscious; Dr.Ganapathivel Kannan [PW-22], who gave further treatment to Manoharan, has stated that Manoharan was semi-conscious, when he examined him at 09.17 PM, on 10.06.2012. Strangely, in this case, both the doctors, namely, Dr.Ganapathivel Kannan [PW-22] and Dr.Saravanan [PW-23] have stated that they examined Manoharan at 09.17 PM, on 10.06.2012. This has been taken advantage of by the learned counsel for the appellants to contend as to how both the doctors could have examined Manoharan at 09.17 PM, on 10.06.2012 and given two different versions. 13. It is common knowledge that in the Government Hospital, the patient will be first examined by the out-patient doctor, who will issue the Accident Register and thereafter, only on his advice, the patient will be admitted as inpatient. At the time of examination of Manoharan by Dr.Saravanan [PW-23], he was conscious and subsequently, if he had become semi-conscious, when Dr.Ganapathivel Kannan [PW-22] examined him for treatment, we cannot conclude that he was not conscious, even when Dr.Saravanan, [PW-23] examined him. It is humanly not possible for the doctors to specify the time at which they examined a patient, with precision and variation of few minutes is negligible. It is humanly not possible for the doctors to specify the time at which they examined a patient, with precision and variation of few minutes is negligible. Therefore, just because Dr.Ganapathivel Kannan [PW-22], who gave further treatment that Manoharan was semi-conscious, we cannot discard the evidence of Dr.Saravanan, [PW-23], who examined Manoharan first and has stated that he was conscious. Since Manoharan was conscious, his son - Sudharsan [PW-1] took him first to the Police Station and then brought him to the Government Rajaji Hospital, Madurai. 14. The learned counsel for the appellants contended that Sudharsan [PW-1] had not identified his father's signature in the complaint [EX-P1] nor the police had taken steps to verify the same. It is not necessary for Sudharsan [PW-1] to identify the signature of his father in the complaint [EX-P1] and that by itself cannot lead to the inference that no police complaint was lodged. The defence have not suggested to Sudharsan [PW-1] that the complaint [EX-P1] was not given by him at all. 15. The learned counsel further contended that the Driver of Auto Rickshaw, in whose Auto Rickshaw, Sudharsan [PW-1] took his father to the Government Rajaji Hospital, Madurai, was not examined and therefore, non-examination of driver of Auto Rickshaw is fatal to the case of the prosecution. The said submission cannot be countenanced, because, it has not been suggested to Sudharsan [PW-1] that he had not gone by Auto Rickshaw. That apart, the driver of Auto Rickshaw had merely transported Sudharsan [PW-1] and his father to the Police Station and thereafter, to the Government Rajaji Hospital, Madurai for treatment. Simply because the driver of Auto Rickshaw was not examined, in our considered view, the entire case of the prosecution cannot be thrown overboard. 16. The learned counsel further contended that Sudharsan [PW-1] has stated that his mother - Vijayalakshmi [PW-17] also accompanied him to the Police Station, whereas Vijayalakshmi [PW-17] has stated that she had gone to the Police Station directly from home. In the opinion of this Court, this discrepancy in the evidence of Sudharsan [PW-1] and Vijayalakshmi [PW-17] is indeed very trivial. 17. Coming to the complaint [EX-P1], which can be treated as dying declaration, the sender is G.K.Manoharan, S/o.Karuppiah Pillai, Gurunathapuram, Chinna Anuppanadi, Madurai and is addressed to the Sub-Inspector of Police, Avaniyapuram Police Station. In the opinion of this Court, this discrepancy in the evidence of Sudharsan [PW-1] and Vijayalakshmi [PW-17] is indeed very trivial. 17. Coming to the complaint [EX-P1], which can be treated as dying declaration, the sender is G.K.Manoharan, S/o.Karuppiah Pillai, Gurunathapuram, Chinna Anuppanadi, Madurai and is addressed to the Sub-Inspector of Police, Avaniyapuram Police Station. In the complaint, [EX-P1], it has been stated that around 08.00 PM, on 10.06.2012, near Chinthamani Priya Tea Stall, Murugan @ Mottulu Murugan [A-1] and Pandi @ Mottulu Pandi [A-2] held Manoharan and Boominathan [A-5] exhorted the others to attack, following which, Raja [A-3] cut him on his head with an aruval and the son of Boominathan [A-5] - Balamurugan [A-4] took the aruval from Raja [A-3] and cut him on the back portion of his head and hand. In the complaint [EX-P1], the previous incident, that took place on 04.05.2012, has also been stated. Manoharan has also stated that the incident was witnessed by Sekar [PW-2] and Petty Shop Rajamani [PW-3]. Of course, Sekar [PW-2] and Petty Shop Rajamani [PW-3] turned hostile. However, Sudharsan [PW-1], in his evidence, has stated that he received information from Rajamani [PW-3] about the attack on his father, near Chinthamani Priya Tea Stall and thereafter, he rushed there. This Court has no reason to disbelieve the evidence of Sudharsan [PW-1] to whom Manoharan had given the details of the attack and the attackers. It has been followed up with complaint [EXP1] given by Manoharan to the Sub-Inspector of Police, Avaniyapuram Police Station, in which, the names and overt acts of the attackers have been clearly set out. The motive for the occurrence has also been narrated. Immediately, thereafter, Manoharan had told Dr.Saravanan [PW-23] that he was attacked by five known persons near Chinthamani Priya Tea Stall at 08.00 PM, on 10.06.2012. Only thereafter, Manoharan started losing his consciousness and ultimately, he succumbed to the injuries. 18. Mr.C.Ramesh, learned counsel appearing for the first appellant, submitted that there is inordinate delay in sending the First Information Report [EX-P7] to the Court. He further contended that the First Information Report [EX-P7] had gone along with the alteration report [EX-P15]. On perusal of the records, it is seen that the First Information Report [EX-P7] was registered at 08.30 PM, on 10.06.2012, after which Manoharan was sent to the hospital for treatment. Manoharan died in the hospital at 11.25 PM, on 10.06.2012. He further contended that the First Information Report [EX-P7] had gone along with the alteration report [EX-P15]. On perusal of the records, it is seen that the First Information Report [EX-P7] was registered at 08.30 PM, on 10.06.2012, after which Manoharan was sent to the hospital for treatment. Manoharan died in the hospital at 11.25 PM, on 10.06.2012. The First Information Report [EX-P7] had reached the Magistrate at 06.45 AM, on 11.06.2012 and therefore, it cannot be stated that there was delay, much less inordinate delay in sending the First Information Report [EX-P7] to the Court. After the death of Manoharan, the alteration report was prepared, altering the case from one under Section 307 IPC to one under Section 302 IPC and that alteration report [EX-P15] was also received by the Magistrate at 06.45 AM, on 11.06.2012 at his residence. In such circumstances, this Court is of the view that the prosecution have proved the case beyond cavil against accused Nos.1 to 5, the appellants herein. 19. Finally, Mr.C.Ramesh, learned counsel, raised the following legal submission:- * When the Trial Court has acquitted the accused under Section 147 IPC, their conviction under Section 302 IPC r/w 149 IPC is illegal. 20. In support of his contention, he placed reliance on the following decisions:- * Achhey Lal Vs. State of UP [ AIR 1978 SC 1233 ] * Amar Singh and others Vs. State of Punjab [ 1987 (1) SCC 679 ] * Subran Alias Subramanian and others Vs. State of Kerala [1993 SCC (Crl) 583] 21. Though, at the first blush, this submission did look attractive, yet, a closer scrutiny of the records of the case, we are unable to persuade ourselves to agree with the said submission, for the following reasons:- *In all the three Judgments, cited supra, five and more persons were prosecuted and in those cases, the Trial Courts had given findings to the effect that the crimes were committed by less than five persons. In that context, the Supreme Court has held that the accused, whose participation in the offence has been proved, cannot be convicted with the aid of Section 149 IPC. * In this case, the Trial Court has given a clear finding that all the five appellants had attacked Manoharan and caused his death. After having given such a finding, the Presiding Officer has strangely acquitted the accused under Section 147 IPC. * In this case, the Trial Court has given a clear finding that all the five appellants had attacked Manoharan and caused his death. After having given such a finding, the Presiding Officer has strangely acquitted the accused under Section 147 IPC. The State has also not chosen to file any appeal against their acquittal. When this matter came up before a Division Bench of this Court in Crl.MP(MD).No.4069 of 2016 in Crl.A.(MD).No.175 of 2016 for suspension of sentence and bail, by order dated 20.09.2016, this Court, after being critical of the Presiding Officer, has sent her for training to the Judicial Academy. 22. The facts obtaining in this case, as stated above, are totally different from those in the cases cited supra. At the risk of repetition, in this case, the finding of the Trial Court is that the death was caused by the attack mounted by Raja [A-3] and Balamurugan [A-4] on the exhortation of Boominathan [A-5] and Murugan @ Mottulu Murugan [A-1] and Pandi @ Mottulu Pandi [A-2] were tightly holding Manoharan so as to prevent him from escaping. The evidence on record shows the presence of five persons in the attack and therefore, the acquittal of the accused under Section 147 IPC, though irregular, will not vitiate their conviction under Section 302 r/w 149 IPC. At this juncture, it is profitable to refer to the following passage in Nallabothu Venkaiah Vs. State of AP [ 2002 (7) SCC 117 ]:- "24. On an analytical reading of a catena of decisions of this Court, the following broad proposition of law clearly emerges: (a) the conviction under Section 302 simpliciter without aid of Section 149 is permissible if overt act is attributed to the accused resulting in the fatal injury which is independently sufficient in the ordinary course of nature to cause the death of the deceased and is supported by medical evidence; (b) wrongful acquittal recorded by the High Court, even if it stood, that circumstances would not impede the conviction of the appellant under Section 302 read with Section 149 IPC; (c) charge under Section 302 with the aid of Section 149 could be converted into one under Section 302 read with Section 34 if the criminal act done by several persons less than five in number in furtherance of common intention is proved." [Emphasis supplied] 23. In view of the foregoing discussions, the Judgment dated 13.04.2016 made in S.C.No.116 of 2014, on the file of the V Additional District and Sessions Judge, Madurai, warrants no interference. 24. In the result, * the Judgment dated 13.04.2016 made in S.C.No.116 of 2014, on the file of the V Additional District and Sessions Judge, Madurai is upheld. * The Criminal Appeal is dismissed. * Suspension of sentence granted by this Court on 20.09.2016 in Crl.MP(MD).No.4069 of 2016 stands cancelled. * Since the accused/appellants are on bail, it is directed that the Trial Court shall take immediate steps to secure them and to commit them to prison to serve out the period of sentence.