JUDGMENT : Prayer: Petition is filed under Section 378 of Criminal Procedure Code, against the Conviction and Sentence imposed by the learned Assistant Sessions, Kovilpatti in S.C.No.183/04, dated 06.08.2009 and acquit the appellants. 1. This Criminal Appeal is filed by the Appellants/Accused Nos.1 to 4, against the Judgment and conviction passed by the learned Assistant Sessions, Kovilpatti in S.C.No.183/04, dated 06.08.2009, convicting the appellants for the offence under Section 307 IPC., and sentenced them to undergo 10 years Rigorous Imprisonment and to pay a fine of Rs. 1000/-, in default, to undergo one year Simple Imprisonment. 2. The appellants are A1 to A4 in this case. During pendency of the appeal, A4 viz., Periya Mariappan died. Hence, the appeal, as against A4, stands abated. 3. The facts of the case are briefly stated hereunder:- (i) The appellants' sister Avudaiammal was given in marriage to P.W.1 and they have a child Manjula of 5 years. During the year 1997, P.W.1 had murdered the sister of appellants viz., Avudaiyammal, her minor daughter Manjula, screened the offense, by buried them inside the house, for which, the 1st appellant had lodged a complaint, on 30.11.1997, against P.W.1 and a case in Crime No.237 of 1997 had been filed. From thereon, there had been enmity between the appellants and P.W.1. (ii) In taking revenge, on 18.07.2002, at about 12.00 Noon, when P.W.1 was walking on the road in Ottapidaram, in front of a shop of one Kasi Nadar, at that time, the appellants attacked him. The 4th appellant had instigated the 1st appellant to finish P.W.1. First appellant attacked with aruval on the head of P.W.1, which was warded off with his right hand, due to which, P.W.1 sustained a deep cut injury almost severing his right wrists; the 2nd appellant attacked P.W.1 on the right chest; the 3rd appellant attacked near lower part of the right ear extending upto head and the 4th appellant had taken a bill hook from the 3rd appellant and attacked on his stomach. Seeing the deceased falling down and motionless, the appellants had ran away from the scene of occurrence. (iii) P.W.1 was taken to hospital by the brother's son Andi Murugan. P.W.7 was the Causality Medical Doctor, who treated him and issued Accident Register, Ex.P8. P.W.8, the Radiologist had taken X-Ray and given a report, Ex.P9. Seeing the deceased falling down and motionless, the appellants had ran away from the scene of occurrence. (iii) P.W.1 was taken to hospital by the brother's son Andi Murugan. P.W.7 was the Causality Medical Doctor, who treated him and issued Accident Register, Ex.P8. P.W.8, the Radiologist had taken X-Ray and given a report, Ex.P9. On receipt of information from the hospital, P.W.9, Sub-Inspector of Police, had gone to the hospital, received the complaint from P.W.1, recorded the statement of P.W.1 and registered Ex.P10, FIR. P.W.11, Investigation Officer, on receipt of FIR, had visited the scene of occurrence, prepared Observation Mahazar, arrested the accused, recorded their confession, made recovery and thereafter, on his transfer, P.W.12 had took up the investigation, carried out further investigation and filed the charge sheet. 4. In order to prove the case of the prosecution, on the side of the prosecution, as many as 12 witnesses were examined as P.Ws.1 to 12 and 18 documents were marked as Exs.P.1 to P.18 and M.Os.1 to 5 were marked. On the side of the accused, 2 witnesses were examined as D.Ws.1 and 2 and marked two documents as Exs.D1 and D2. 5. When the appellants were questioned under Section 313 Cr.P.C., about the incriminating circumstances appearing against them, they denied the same. 6. The trial Court, on the basis of the oral and documentary evidence, convicted and sentenced the accused as aforesaid, challenging the legality of the said conviction and sentence, the present appeal has been filed by the appellants. 7. The learned counsel appearing for the appellants would submit that P.W.1 had married the sister of the appellants and they were having a minor girl child Manjula of five years. P.W.1 had murdered the sister of the appellant and her child. To screen the offence, P.W.1 had buried the body of both inside the house. Thereafter, on complaint of the first appellant, the case came to be registered, the bodies were exhumed and the case is pending against P.W.1. From the year 1997 onwards, there was enmity between the appellants and P.W.1. P.W.1's daughter was given in marriage to the 1st appellant and the first appellant used to inform his wife that death of P.W.1 would be at their hands. In continuation of the same, on 18.07.2002, P.W.1 was attacked by the appellants. 8. From the year 1997 onwards, there was enmity between the appellants and P.W.1. P.W.1's daughter was given in marriage to the 1st appellant and the first appellant used to inform his wife that death of P.W.1 would be at their hands. In continuation of the same, on 18.07.2002, P.W.1 was attacked by the appellants. 8. Contending further, the learned counsels appearing for the appellants would submit that the occurrence had taken place in front of the shop of Kasi Nadar, as could be seen from Ex.P1 Complaint, as well as Ex.P10 FIR and in the evidence of P.W.1. Strangely, in Ex.P11, Rough Sketch and in Ex.P2, Observation Mahazar, there is no mention about Kasinadar Shop instead it has been mentioned as though the occurrence had taken place before the Ponnu Naicker Lorry Shed. Hence, by changing the scene of occurrence, the foundation of the case has been wrecked. 9. Adding further, the learned counsels for the appellants would submit that P.Ws.2 and 3 brother and sister of P.W.1 though projected as eyewitnesses, have not supported the case of the prosecution. P.W.2 states that he is not aware, who all attacked P.W.1 and he only admits his signature in the Complaint, Ex.P1, as witness; P.W.3 had been treated as hostile; the other witnesses have also not supported the case of the prosecution; P.W.4, is the Village Assistant, in presence of whom, Ex.P2, Observation Mahazar and Ex.P3 Mahazar from the scene of occurrence had been prepared, admits that the scene of occurrence is a busy place and there are lot of shops in the place and no persons from there had been examined as witness; 10. The learned counsel would further submits that P.W.5, is the witness for arrest and recovery from A2 and A3, except for identifying the signature, he does not speaks anything else; P.W.7, the other witness for confession and recovery states that the signature found in the confession and mahazar were obtained in the Police Station and other than that, he is not aware of any other things; P.W.10 is the Sub Inspector of Police, who states about the first appellant lodging the complaint against P.W.1, for murdering his sister and her daughter by P.W.1; P.Ws.7 and 8 are the Doctors, attached to the Government Hospital, Thoothukudi; P.W.8, who treated P.W.1, had issued Ex.P8, Accident Register, in which, he had stated that except for injuries Nos.1 and 3, other injuries are simple in nature; 11. The learned counsels further submits that P.W.9 is the Radiologist, who issued the Radiologist Report Ex.P9; P.W.9 is the Sub- Inspector of Police, who had recorded the statement of P.W.1, treated it as complaint, registered it as Ex.P10 FIR. categorically states that he has not received any statement from P.W.1. P.W.11 is the Inspector of Police, on receipt of FIR, he reached the scene of occurrence, prepared Observation Mahazar, arrested A2 and A3, recorded their confessions, recovered M.Os.4 knife and thereafter taken A1 for Police custody and through him, M.O.5 Bill hook has been seized. This witness is not certain whether the occurrence had taken place in front of Kasi Nadar Shop or before the Ponnu Naicker Lorry Shed. The improvement and exaggeration lead to contradiction of P.W.1 are admitted by this witness. P.W.12, the Investigating Officer, who had taken up investigation from P.W.11, on 18.08.2002, on receipt of Forensic Report, had filed the charge sheet. This witness admits about the contradiction of P.W.1. In this case, except for P.W.1 and official witnesses, all the other witnesses have not supported the case of the prosecution. 12. P.W.1 has got several cases against him, including murder cases and he had enemies. Since the first appellant had lodged a complaint and the appellants are the witness in the case of murder of the appellants' sister and her daughter by P.W1, P.W.1 had strong motive to implicate the appellants. The Investigating Officer had admitted about the improvements, embellishments made by P.W.1. Thus, it was contended that P.W.1 has got motive and thereby implicated the appellants in this case. The Investigating Officer had admitted about the improvements, embellishments made by P.W.1. Thus, it was contended that P.W.1 has got motive and thereby implicated the appellants in this case. The learned counsels further submit that A2 in this case was employed as water diviner on 18.08.2002 at Sankaralingapuram at far of place and to prove the same, Ex.D1 has been marked. D.W.1 is the co-worker along with the 2nd appellant and D.W.2 is the owner of the bore well boring machine. 13. The learned Government Advocate (crl.side) appearing for the State would fairly submit that in this case, except P.W.1 and official witnesses, the other witnesses have not supported the case of the prosecution. P.W.1 though had given an exaggerated version and has got motive, it is to be seen that he is the injured witness, who had been mercilessly attacked by the appellants, as a result of which, the right wrist was almost severed and it was attached only by skin tag. The attack was on the right frontal to parietal region of the skull over left shoulder exposing underlying muscles and the injuries are deep, but for the immediate treatment, the injuries in a normal course could have caused death to P.W.1. 14. The learned Government Advocate would further submit that the identity of the appellants are not in dispute, since the appellants and P.W.1 are closely related. The appellants had clear motive to do away P.W.1. P.W.10, the Sub-Inspector of Police, who had stated about the previous case, the complaint in this case came to be recorded in the hospital on the same day of the occurrence, on receipt of information, at about 4.30 p.m., thereafter, the FIR came to be registered immediately. The Investigating Officer had visited the scene of occurrence, examined the witnesses, prepared observation mahazar and mahazar for seizure of blood stained aruval. On the arrest of A2 and A3, they had given confession, M.O.4 knife was seized. A1 had surrendered and was in judicial custody, thereafter, he was taken to police custody, on his confession, M.O.5 was recovered. The witnesses to the mahazars have admitted their signatures, but have not spoken to about the contents. The Doctors viz., P.W.7 & P.W.8 had stated about the injuries sustained by the deceased. 15. The 2nd appellant had taken a plea of alibi and examined D.Ws. The witnesses to the mahazars have admitted their signatures, but have not spoken to about the contents. The Doctors viz., P.W.7 & P.W.8 had stated about the injuries sustained by the deceased. 15. The 2nd appellant had taken a plea of alibi and examined D.Ws. 1 and 2 and marked Ex.D1, which was not accepted by the trail Court, taking false defence of alibi is one of the circumstances to be taken against the appellant/accused. The trial Court, on appreciation of the evidence, had rightly convicted the appellants, which need not be interfered with. 16. I have heard the learned counsels appearing on either side and carefully perused the materials available on record. 17. Considering the rival submissions and on perusal of the materials, it is seen that P.W.1 had been mercilessly attacked by the appellants using Bill hooks M.Os.3 to 5. The attack have been carried out on the vital parts. P.W.7, the Doctor, had issued Ex.P8, in which, it is clearly stated that the injury 1 and 3 are grievous injuries. From the evidence it is seen that P.W.1 had caused murder of the appellants' sister and her daughter and further attempted to screen the offence by burying it inside the house and which is a strong motive of the appellants to do away P.W.1. Though there are some discrepancies with regard to the place of occurrence and there are no independent witnesses, P.W.1 had sustained severe injuries, who had taken to the Hospital immediately, his statement has been recorded, wherein he had stated about the overt act of the appellants. The Doctor confirms the injuries. It should be noted that there is no evidence to show that the injuries sustained in normal course would have lead to death of the deceased. There is no mention how long the deceased was taken treatment as inpatient, further there is no wound certificate produced. The X-Ray Report is not accommodate with the X-Ray and the Radiologist/P.W.9 states that there is no fracture. There are exaggerations and embellishments in the evidence of the witnesses. In view of the above, the conviction and sentence imposed on the appellants under Section 307 IPC., is not sustainable and the same is set aside, but the appellant is found guilty under Section 326 of IPC., and is liable to be convicted. 18. There are exaggerations and embellishments in the evidence of the witnesses. In view of the above, the conviction and sentence imposed on the appellants under Section 307 IPC., is not sustainable and the same is set aside, but the appellant is found guilty under Section 326 of IPC., and is liable to be convicted. 18. However, taking into consideration the entire facts and circumstances of the case and considering the antecedents of P.W.1 and his involvement in many other cases including the case of murdering his wife and daughter and buried them inside the house, P.W.1's wife is none other than the sister of the appellants and there was sustained provocation, and the appellants 1 to 3 already undergone 154 days, 115 days and 201 days respectively, this Court is inclined to modify the conviction of the appellants in respect of the offence under Section 326 I.P.C., by sentencing them to the period of imprisonment already undergone. 19. With the above modifications, the Criminal Appeal stands partly allowed.