JUDGMENT : (Prayer: Criminal Appeal filed under Section 374(2) of Code of Criminal Procedure, to set aside the conviction and sentence made in S.C.No.185 of 2008 on the file of the District and Sessions Judge, Nagapattinam, dated 19.03.2012.) (Heard through Video conferencing) R.N. Manjula, J. 1. The Appellants have filed this Appeal challenging the conviction and sentence made in S.C.No.185 of 2008 on the file of the learned District and Sessions Judge, Nagapattinam, dated 19.03.2012. 2. There were totally 7 accused in this case. Since two of the accused were absconding, the case against them was split up. In view of that the remaining accused against whom the case was conducted by the Trial Court in S.C.No.185 of 2008 were re-arrayed as A1 to A5. 3. The facts of the case in brief: 3.1. A.1 to A.7 are close associates and they are the residents of Puthu Theru, Mayiladuthurai. On 08.11.2005 at about 10.00 pm, P.W.1 Premkumar, the son of the deceased, was conversing with one Chithra and that was objected by A1 to A5; in view of that there occurred a wordy quarrel between them and the accused assaulted P.W.1. The said incident was conveyed by PW1 to his father Siva, who is the deceased; the deceased Siva was the Secretary of Mayiladuthurai Auto Rickshaw Drivers Association; A.6 was also a leader of another group of Auto Rickshaw Drivers Association and there was a rivalry between them. On hearing that his son PW1 was assaulted by the accused and the deceased Siva warned them. 3.2. On 08.11.2005 at about 10.00 pm A.1 to A.7 entered into a criminal conspiracy between themselves at the house of A.6, in order to murder the deceased Siva. In execution of the said plan, they armed themselves with deadly weapons like aruval and iron pipes and on 09.11.2005 at about 11.00 am when the deceased Siva was standing in front of Sri Andavar Tea Stall at Tharangambadi Road, Mayiladuthurai, the accused formed themselves into an unlawful assembly with a common object of murdering the deceased; A.1 attacked the deceased with aruval on the backside of his head; A.2 attacked the deceased with iron pipe on the centre of his head; A.3 assaulted the deceased with iron pipe on his mouth; A.4 and A.5 attacked the deceased with iron pipe on the centre of his head. Subsequently the deceased was taken to the hospital but he succumbed to the injuries. 3.3. On receiving a complaint from one Babu about the occurrence, a case has been registered in Crime No.1202/05 of Mayiladudurai Police Station under sections 341, 324, 307 IPC. Subsequent to the death of the deceased, the charges have been altered to 302 IPC. After completion of the investigation, charge sheet has been filed against the accused persons under Section 120 (B) IPC, 148 and 302 r/w 149 IPC. Since the two of the accused persons have been absconding, the case against them was spilt up. The trial proceeded against the remaining 5 accused (who were originally in the ranks A.1, A.3, A.4, A.6 and A.7), and their ranks have been re-assigned as A.1 to A.5. The charges have been framed against these accused including A.4 and A.5 under Sections 120 (B) IPC, 148 and 302 r/w 149 IPC. 3.4. During the course of trial, on the side of the prosecution, 20 witnesses have been examined as P.Ws.1 to 20 and Exs.P-1 to P-25 were marked and M.Os. 1 to 6 have been produced. On the side of the accused no witnesses were examined and Ex.D1 has been marked. 3.5. After appreciating the evidence available on record, the trial Court passed the judgment on 19.03.2012 by finding A1 to A3 guilty for the offences under Sections 148 and 304 (Part I) r/w 149 IPC alone and convicted them for the same. The trial Court has acquitted A.4 and A.5 by recording a finding that the charges against them were not proved. The details of the conviction and sentence imposed on A.1 to A.3 are as under: Rank of the accused Provision under which convicted Sentence A1 to A3 Section 148 IPC one year Rigorous Imprisonment and fine of Rs.2,000/- each in default to undergo three months simple imprisonment A1 to A3 Section 304 (part I) r/w 149 of IPC 10 years rigorous imprisonment and fine of Rs.5,000/- each in default to undergo one year simple imprisonment Aggrieved over the above said judgment, the appellants/ A.1 to A.3 have filed this appeal. 4. The case of the prosecution as it appears from the evidence of the witnesses: 4.1. 4. The case of the prosecution as it appears from the evidence of the witnesses: 4.1. The deceased Siva was the Secretary of Mayiladuthurai Auto Rickshaw Drivers Association and A6 was also a leader of another group of Auto Drivers Association and there was enmity between the two groups. P.W.1- Preamkumar and P.W.3 Prabakaran are the sons of the deceased. They were residing at Tharangambadi Main road, Kotha Theru Mayiladuthurai. P.W.1 became friend of one Chithra who is the resident of Puthu Theru, Mayiladuthurai. 4.2. On 08.11.2005 at about 9 am, P.W.1 went to Puthu Theru to meet Chithra. After meeting her there he was talking with her. At that time A.1 Krishnan along with the split up accused Rajiv Gandhi, A.3 and A.4 warned and beat him that he should not talk with her. This incident was informed by P.W.1 to his father Siva. The deceased told P.W.1 that he would warn the accused. At about 6.00 pm, he informed P.W.1 that he had warned the accused and he also asked PW1 not to go to that street. 4.3. On 09.11.2005 at about 11.00 am, when the deceased left his house and walking on the street, P.W.1 was also following him at a distance of 10 to 15 ft. When the deceased was preceding to Andavar Tea Stall in order to take tea, A.1 Krishnan and split up accused Rajiv Gandhi, A.2 Senthil, A.3 Raju and another split up accused Kovil Saravanan came to the Tea stall in motorcycle and bicycles (M.O.1 & 2). One Kovil Saravanan was already standing near the gate. On seeing the deceased, A.1 and spilt up accused Rajiv Gandhi restrained him and A.1 attacked the deceased with aruval on the backside of his head; the spilt up accused Rajiv Gandhi and Kovil Saravanan along with A.3 beat him with iron pipes (M.O.4 series); A2 also beat the deceased on his face. Appadurai (P.W.5) and Babu who stood near the auto stand, shouted on seeing this. Immediately the accused ran away from the spot. Thereafter P.W.1 with the help of P.W.2- Praveenkumar and P.W.5 Appadurai and one Babu lifted the deceased and took him to the hospital in an auto and admitted the deceased in the Mayiladuthurai Government Hospital. 4.4. A complaint statement (Ex.P.19) was given to the police by one Babu. Immediately the accused ran away from the spot. Thereafter P.W.1 with the help of P.W.2- Praveenkumar and P.W.5 Appadurai and one Babu lifted the deceased and took him to the hospital in an auto and admitted the deceased in the Mayiladuthurai Government Hospital. 4.4. A complaint statement (Ex.P.19) was given to the police by one Babu. On receiving his statement, PW19- Sampath Kumar, S.I of Police registered a case in Crime No.1202/2005 under Sections 341, 324, 307 IPC and prepared the FIR (Ex.P.20). First Information Report was received by the learned Magistrate at about 5.20 pm. on the same day after registering the complaint. P.W.19 went to the place of occurrence and prepared an observation mahazar (Ex.P.21) and Rough Sketch (Ex.P.22). He also seized the TVZ XL Super two-wheeler (M.O.1) and a Hercules Bicycle (M.O.2) under the mahazar (Ex.P.23). After examining the witnesses, he went in search of the accused persons. On 10.11.2005 at about 12.30 p.m., he arrested the accused (A.2 to A.4). In pursuance of the confession given by A.1 and on his identification, a gunny bag (M.O.6) which had one sickle (M.O.3) and 3 iron pipes (M.O.4 series) have been recovered under a Seizure Mahazar (Ex.P.25). 4.5. On receiving the intimation (Ex.P14) on 12.11.2005 that the injured succumbed to his injuries, PW17 Inspector of Police altered the charges from Sections 147, 148, 341, 324 and 307 IPC to Sections 147, 148, 341 and 302 IPC and prepared a alteration of charge memo (Ex.P15) and sent it to the Court. PW19 examined the doctor who conducted the post-mortem and obtained the post-mortem certificate (Ex.P.12). After completion of the post-mortem he conducted the inquest and prepared the inquest report (Ex.P.16). He seized the dress on the body of the deceased (M.O.5) and thereafter PW.19 went on transfer. P.W.20, Inspector of Police perused the records and filed the charge sheet against the accused under Sections 148, 341 and 302 r/w 34 IPC. 4.6. After the completion of the trial, the learned trial Judge found these appellants A.1 to A.3 guilty for the offences under Sections 148 and 304 (Part I) r/w 149 IPC and convicted and sentenced the appellants/A.1 to A.3 as tabulated supra. Aggrieved over the above said conviction and sentence, the appellants/ A.1 to A.3 have filed this appeal. 5. 4.6. After the completion of the trial, the learned trial Judge found these appellants A.1 to A.3 guilty for the offences under Sections 148 and 304 (Part I) r/w 149 IPC and convicted and sentenced the appellants/A.1 to A.3 as tabulated supra. Aggrieved over the above said conviction and sentence, the appellants/ A.1 to A.3 have filed this appeal. 5. Heard the arguments of Mr.D.Veerasekaran, learned counsel for the appellants and Mr.M.Babu Muthu Meeran, learned Additional Public Prosecutor, appearing for the respondent State. 6. The submissions of the learned counsel for the appellants in brief: The learned Sessions Judge failed to note that Babu, the author of the complaint (Ex.P-1) was not examined by the prosecution; despite the prosecution witnesses PW.2, PW5, PW.6 to P.W.11 and PW.13 have turned hostile, the benefit of doubt was not given to the appellants; since PW.1 whose name was not found in the Ex.P.1 (complaint) his presence in the place of the occurrence is doubtful and the same was not appreciated properly by the learned trial Judge; the learned trial Judge has failed to see that there was no cut injury on the head of the deceased as per the post-mortem report; one of the main witnesses namely Chithra with whom PW.1 is said to have developed the conversation was not examined as a witness; and the trial court ought to have given the benefit of doubt and acquitted the appellants. 7. The learned Public Prosecutor has submitted that the evidence of the eyewitnesses are cogent, clear and corroborating. The report of the doctor who conducted the post-mortem and the materials objects seized from the accused coupled with the forensic science report would show the involvement of the accused to the occurrence beyond reasonable doubt. 8. The point for consideration is Whether the conviction of the accused 1 to 3 for the offences under Sec.148 and 304(Part I) IPC on the basis of the materials available on the record is fair and proper? 9. This is a case where the ocular witnesses have given a detailed account of the occurrence. PW.1 is the son of the deceased and he has been examined as an eyewitness. He has stated in his evidence that on 08.11.2005 at about 9.00 a.m, he went to Puthu Theru and conversed with one Chithra; A.1 and spilt up accused Rajiv Gandhi, A.3 and A.4 objected to it and assaulted PW.1. PW.1 is the son of the deceased and he has been examined as an eyewitness. He has stated in his evidence that on 08.11.2005 at about 9.00 a.m, he went to Puthu Theru and conversed with one Chithra; A.1 and spilt up accused Rajiv Gandhi, A.3 and A.4 objected to it and assaulted PW.1. He has further stated that he informed about this to his father, deceased Siva and he warned him not to go to that street; on 09.11.2005 at about 11 am when his father went to the shop, he also followed him at a distance of 10 to 15 feet; when nearing the Andavar Tea Stall, the appellants along with the spilt accused Rajiv Gandhi and Kovil Saravanan came in a bike and cycle and attacked the deceased with the aruval and iron pipes. As he was following the deceased at a distance of 10 to 15 feet it could have been possible for him to see the occurrence. 10. Though there are some minor contradictions in his evidence they were not too significant or strong enough to falsify the case of the prosecution. In fact such minor contradictions in narrating an event is quite natural. The evidence of P.W.1 that the entire occurrence was over within 5 minutes would show that he has not exaggerated the facts. It was suggested by the defence to him that the death of the deceased had occurred as a result of the scuffle occurred at his house. Such a theory proposed by the defence has not been substantiated in order to defeat the strong evidence of the prosecution. 11. The evidence of PW1 is corroborated by the other eyewitnesses. Another eyewitness P.W.2, has stated that at about 11.00 a.m., he saw the body of the deceased in a pool of blood in the place of occurrence and his sons were standing there and crying. The occurrence had taken place at 11.00 am and the house of the deceased is also nearby to the place of the occurrence. So it is possible for PW.2 to see the deceased lying in a pool of blood and his sons were there. Though PW2 is a hostile witness, his evidence would prove that PW1 and PW3 were present at the place of occurrence. According to the evidence of PW1 he was just following his father and he witnessed the occurrence and ran. Though PW2 is a hostile witness, his evidence would prove that PW1 and PW3 were present at the place of occurrence. According to the evidence of PW1 he was just following his father and he witnessed the occurrence and ran. And his brother PW3 has stated that he rushed to the spot on hearing about the occurrence. 12. P.W.3 has also stated about the events that preceded the occurrence. He recalled that on the previous day evening his father warned P.W.1 not to go to Puthu Theru. This corroborates with the evidence of P.W.1 with regard to the previous day’s incident. PW.3 has also seen his father lying near Andavar Tea Stall and the appellants and other accused were running with weapons in their hands. The cross examination of P.W.3 did not bring anything adverse to the case of the prosecution. 13. P.W.4 doctor who had examined the victim immediately after he was brought to the Government hospital, Mayiladuthurai has stated that he noted blood injuries on his left head and lips. It is opined by P.W.4 that the injuries on the body of the deceased correlate with the kind of attacks made on the deceased with the kind of the weapons used by them. The weapons have been seized on the confession of the first accused which led to recovery and they have been marked as Material Objects 3 and 4(series). 14. Since Dr.Raman who had conducted the post mortem on the body of the deceased was sick and immobile due to paralytic attack, he could not be examined as a witness. However, PW12 -Dr.Saravana Kumar who is conversant with the signatures and handwriting of Dr.Raman has been examined as P.W.12. and he deposed evidence on the basis of the records, and Ex.P.12 Post-mortem report has been marked through him. In Ex.P.12 the following injuries on the body of the deceased have been noted and it is opined that the deceased would have died due to his head injuries and pain shock. Even P.W.12 has stated in his evidence that the said injuries could have been inflicted with aruval and iron pipes used by the accused. The injuries noted on the body of the deceased are as under: “Appearances found at the Post-mortem: Body of a male found on the P.M. Table whole head is covered in white bandage. Even P.W.12 has stated in his evidence that the said injuries could have been inflicted with aruval and iron pipes used by the accused. The injuries noted on the body of the deceased are as under: “Appearances found at the Post-mortem: Body of a male found on the P.M. Table whole head is covered in white bandage. Eyes closed, left ear bleeding present, right ear no discharge, nose no discharge tongue inside the mouth. Teeth intact. Mouth closed, hands empty. External Injuries: Whole head is covered in white bandage. A sutured wound on the left side of the skull starting above left eye going backwards vertically like an arch and ending behind the left ear. Another wound just behind the previous mentioned wound 2/2 cms bone depth. Opening of abdomen - Ribs intact, Hyoid intact, Heart chambers empty, stomach contain coffee coloured fluid, liver Spleen, Kidney are congested. Opening of skull clotted blood of about 100 ml present. Fracture of left temporal bone present fracture of both occipital bone present. Subdural hematoma present. Membranes ruptured over the corresponding area. Post-mortem completed at 6.00 P.M. Death would have occurred four hours before post-mortem.” 15. It is submitted by the learned counsel for the defence that in the Accident Register recorded at the Chidambaram Government Hospital it is noted that the occurrence had taken place at the house of the deceased. The said Accident Register is marked as Ex.D1 through P.W.20. It is claimed that Ex.D1 was registered by P.W.12. Despite P.W.12 was examined before the Court he was not confronted with Ex.D1. The learned trial Judge has dealt with Ex.D1 and recorded that it is not proved. And there is sufficient evidence on record to show that the occurrence had not taken place at the house of the deceased. PW1 and PW 3 who were the sons of the deceased would say that their house is also on the Tharangampadi Salai, where the occurrence had taken place. The evidence of P.W.1 and the observation Mahazar prepared by the Investigation Officer would show that the occurrence had taken place at Tharangampadi salai and opposite to Andavar Tea Stall. 16. It is submitted by the learned counsel for the Appellant that the prosecution has not examined the complainant Babu and that is fatal to the prosecution case. The evidence of P.W.1 and the observation Mahazar prepared by the Investigation Officer would show that the occurrence had taken place at Tharangampadi salai and opposite to Andavar Tea Stall. 16. It is submitted by the learned counsel for the Appellant that the prosecution has not examined the complainant Babu and that is fatal to the prosecution case. It is true that the complainant Babu is an important witness who ought to have been examined by the prosecution. Though the prosecution omitted to examine the complainant Babu who has given the complaint, P.W.1- eyewitness and P.W.13, who was running an Air conditioner sales shop opposite to the place of occurrence have spoken about the presence of the complainant Babu in the place of occurrence. P.W.13 who has been treated as a hostile witness has also spoken about the presence of the complainant in the place of occurrence and stated that he helped to lift the deceased after he had fallen down due to the attacks made on him. PW17, Subakumar, S.I of police has stated in his evidence that on 09.11.2005, on hearing the intimation from the Government Hospital, Mayiladuthurai, he went to the hospital and enquired about the deceased Siva who had been under treatment there. Since Siva was injured and unconscious at that time, he got the complaint statement from Babu, who is the friend of Siva and who had also witnessed the occurrence and registered the FIR on that basis. These evidence on record would prove about the fact of giving the complaint statement by Babu, despite he was omitted to be examined as a witness. 17. Though some of the witnesses in this case have turned hostile, the evidence of the rest of the witnesses as elaborated above is cogent, consistent, and corroborative to each other. And hence they are sufficient enough to instil the confidence of the Court. PW19, Sub-Inspector of Police has recovered the vehicles in which the accused came to the place of occurrence from the place of occurrence itself, when he visited the place of occurrence immediately after registering the FIR. The weapons used for the occurrence have also been recovered by him after arresting the first accused on the confession given by him and these materials have been produced before the Court and marked as material objects. The weapons used for the occurrence have also been recovered by him after arresting the first accused on the confession given by him and these materials have been produced before the Court and marked as material objects. Hence the learned trial Judge is right in believing the substantive and corroborative, medical evidence and all other relevant facts available before him and recording the guilt against the Appellants. 18. There is no evidence to prove that a conspiracy has been hatched among the appellants before the occurrence to murder the deceased. Though there was ill-will against the deceased that he was the Secretary of rival Auto Driver’s Association, there is no evidence to show that there was conspiracy and pre-meditation to murder the deceased. Since the deceased died 3 days after his admission in the hospital and the nature of treatment given to the deceased was also not established by the prosecution by producing the case sheets, the learned trial Judge has convicted the appellants for culpable homicide not amounting to murder under section 304(part I) IPC, though the charge was framed under section 302 IPC. 19. Despite the case of the prosecution is that all the seven accused formed an unlawful assembly in order to commit the offence, the learned trial Judge found A.4 and A.5 not guilty and acquitted them. PW1 has stated in his evidence that these appellants came along with the two split accused namely Rajiv Gandhi and Kovil Sarvanan to the place of occurrence and they carried weapons. To record a finding on this basis that the appellants have formed an unlawful assembly along with Rajiv Saravanan and Kovil Saravanan, would amount to rendering a finding against the split accused also who had not stood for the trial. Hence we feel that instead of invoking the provision for unlawful assembly, the provision with regard to the common intention to commit the offence as prescribed under sec.34 I.P.C can be safely invoked. Even without the aid of Section 149 IPC, the accused can still be punished for the offence under Section 304(Part I). 20. It is worthwhile to recall the law on this point laid down by the Hon’ble Supreme Court in its judgment rendered in [Nallabothu Venkaiah v. State of A.P.,] and reported in 2002(7) SCC 117 . The relevant portion is extracted below: 24. 20. It is worthwhile to recall the law on this point laid down by the Hon’ble Supreme Court in its judgment rendered in [Nallabothu Venkaiah v. State of A.P.,] and reported in 2002(7) SCC 117 . The relevant portion is extracted below: 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. 21. Since Section 34 IPC is not a substantive penal offence, a separate charge need not be necessarily framed in order to convict the accused for the offence under sec.304(I) r/w 34 I.P.C. Since the fatal attacks caused by A.1 to A.3 with a common intention of attacking him with the deadly weapons carried by them and the deceased succumbed to his injuries when he was under treatment, that would itself independently prove the commission of the offence by the appellants under Section 304 (Part I) r/w 34 I.P.C. So the appellants can be punished for the offence under sec. 304(I) r/w 34 I.P.C and to that extent the conviction and sentencing can be modified. And thus the point taken for consideration is answered. In the result the Appeal is partly allowed and the judgment of the trial Court is modified to the extent that the Appellants are found guilty for the offence under Section 304(Part I) r/w 34 I.P.C and sentenced to undergo 7 years of Rigorous Imprisonment and a fine of Rs.5,000/- each in default to undergo 6 months of Simple Imprisonment and the appellants are acquitted for the offence under Section 149 IPC. The period already spent on incarceration is allowed to be set off from the period of the sentence imposed.