JUDGMENT (Prayer: Criminal Appeal is filed under Section 374 (2) of Cr.P.C., to set aside the conviction and sentence imposed on him by the Learned Additional District and Sessions Judge, Dharmapuri by Judgment dated 28.06.2013 in S.C.No.126 of 2012 and allow this appeal and acquit the appellant.) 1. This Criminal Appeal is filed against conviction and sentence imposed by the trial Court holding this appellant guilt of offence under Section 304(1) of I.P.C (two counts) and sentenced to undergo 10 years R.I for each counts and also to pay fine of Rs.2,000/- for each count, in default 6 months R.I for each counts. Convicted for offence under Section 307 of I.P.C (2 counts) sentenced to undergo 7 years R.I for each counts and to pay fine of Rs.1,000/- for each counts, in default to undergo 3 months R.I each count. The substantive sentence was ordered to run concurrently. 2. The case of the prosecution is that the defacto complainant and the victims belongs to Kollakottai hamlet near Pappireddipatti. The Appellant Opputtu @ Chinnavan and his son-in-law Anumanthan (A2 – acquitted by the trial Court) belongs to Mangalakottai hamlet. There was dispute between the residence of these two hamlets in respect of the TASMAC Shop located in Mangalakottai Village. The persons belonging to Kollakottai hamlet were opposing the TASMAC shop located at Mangalakottai hamlet. While so, a month before the incident, when Rajiv (Deceased), Megan (deceased) and Ayyasamy (injured) who are residents of Kollakottai hamlet went to Mangalakottai hamlet and protested for establishment of TASMAC shop, the appellant and his son-in-law questioned them, why they come to their Village and making protest and threatened them dire consequence. 3. While so, on 05.11.2010, when the defacto complaint Saravanan of Kollakottai hamlet went to the grocery shop of Periyannan located near the Mangalakottai bus stop, Rajiv, his brother Megan and Ayyasamy also came to the shop for purchasing groceries. At that time, the appellant and his son-in-law Anumanthan teased them demanding liquor to celebrate Diwali, for which, Rajiv, Mangan, Ayyasamy, retarded saying when they are opposing the liquor shop in the Village, how dare they demand liquor from them. Anumanthan (A2) spit on Rajiv and moved away threatening them that he and his father-in-law will finish them one day. 4. Anumanthan (A2) spit on Rajiv and moved away threatening them that he and his father-in-law will finish them one day. 4. Soon thereafter, while Rajiv, Megan, Ayyasamy and Saravanan, (the defacto complainant) returning back to their hamlet, Anumanthan (A2) and Opputtu @ Chinnavan (the appellant) went ahead of them and waiting, A2 came and caught Rajiv. This appellant took knife and stabbed Rajiv on his Left Chest. When Megan rushed to save his brother Rajiv, the appellant stabbed Megan on his chest. Both Rajiv and Megan fell down. Ayyasamy, who tried to save Megan from further attack was also brutally stabbed by the appellant repeated over his chest, shoulder and left hand. The defacto complainant, who tried to prevent the appellant from further causing injury, was also attacked by the appellant with knife. Hearing the commotion, the Villagers rushed to the spot and on seeing them, both the accused fled. Rajiv died on the spot. Megan and Ayyasamy were taken to hospital. At the hospital, the doctor declared Megan brought dead and admitted Ayyasamy in the Intensive Care Unit. The defacto complainant, who sustained injury on his left fore hand, took first aid and came to the Police Station and gave the complaint (Ex.P.1). 5. Based on the complaint (Ex.P.1), a case in Crime No.346 of 2010, under Sections 341, 302, 307 of I.P.C was registered and taken up for investigation. Based on the final report and on committal, the Additional Sessions Judge, Dharmapuri, framed charges under Sections 302 of I.P.C (2 counts) and 307 of I.P.C (2 counts) against A1 Opputtu @ Chinnavan (the appellant herein). Framed charges under Sections 302 r/w 34 of I.P.C (2 counts) and 307 r/w 34 of I.P.C (2 counts) against Anumanthan (A2). 6. After completion of trial, on appreciating the evidence of prosecution, the trial Court held that A1 was 60 years old at the time of occurrence and the quarrel occurred on the day of Diwali when the deceased as well as the accused were in inebriated mood. Therefore, considering the nature and circumstances of the case, held a case of homicide not amounting to murder and liable to be punished under Section 304(1) of I.P.C. A1 was convicted for offence under Section 304(1) of I.P.C (2 counts) and sentenced to undergo 10 years R.I and for offence under Section 307 of I.P.C (two counts) to undergo 7 years R.I. 7. The said judgment and conviction is challenged in this appeal on the ground that the delay in F.I.R not properly explained and earlier F.I.R been suppressed. It is contended that the occurrence alleged to have taken place at 4.30 p.m., and police has reached the spot immediately as per the witnesses. While so, the F.I.R came to be registered only at 11.00 p.m. The discrepancy in the description of the weapon used namely M.O.1, while in the F.I.R says it is SuriKaththi What is marked is Silukku which is different from SuriKaththi P.W.1 and P.W.3 are interested witnesses and therefore, their testimony is not reliable. However, the Courts below has heavily harped on the testimony of these two witnesses and has convicted the appellant. The motive for attack is not established by the prosecution. There is no evidence to show that the villagers of Mangalakotti and Kollakottai had quarrel regarding liquor shop at Mangalakottai. From the Post mortem report of Rajiv, two burn injuries are noticed and same not explained by the prosecution when the alleged overt act was only stab injuries using M.O.1. The ocular evidence and the medical evidence regarding injury does not tally. The contradictions gains significance when the weapon not properly identified by the witness. While so, the trial Court has ignored these discrepancies and convicted the accused. 8. The Learned Counsel appearing for the appellant reading the evidence extensively submitted that the benefit extended to A2 should have been extended to A1 also, when the prosecution witness is not consistent about the overt act or the weapon used. Further, he also submit that the appellant been convicted for offence under Section 307 of I.P.C (two counts), when obviously the injury sustained by P.W.1 is also simple in nature and the injury was found on the non-vital part of the body. Therefore, intention to cause death is totally absent in so far as, the injuries sustained by P.W.1. However, the trial Court has convicted the appellant for offence under Section 307 I.P.C (two counts), for attempt to murder of P.W.1 and P.W.3. 9. The Learned Government Advocate (Crl.Side) for the respondent appearing for the State contended that the incident was due to previous enmity. The appellant along with his son-in-law A2 restrained the deceased Rajiv and attacked him with deadly weapon M.O.1 with the criminal intention to cause his death. 9. The Learned Government Advocate (Crl.Side) for the respondent appearing for the State contended that the incident was due to previous enmity. The appellant along with his son-in-law A2 restrained the deceased Rajiv and attacked him with deadly weapon M.O.1 with the criminal intention to cause his death. When his brother Megan tried to rescue him, Megan was also attacked on the vital part, both Rajiv and Megan died. The other two persons, who tried to rescue them and got injuries are P.W.1 and P.W.3. The wound certificate of P.W.3 which is marked as Ex.P.15 indicates stab injury on the left side of the abdomen, lacerated wound infra memory region extending to epigastric region and also lacerated injuries in the index middle Ring finger of each 2 c.m, which indicates the intention of the accused to cause death and the injuries on the vital organ of the body, which are likely to cause death. The overt act of the appellant for causing injury is spoken by P.W.1 and P.W.3 who sustained injury at the hands of the appellant. Though, the trial Court has given the benefit of the intention to cause death and altered to charge from 302 I.P.C to 304(1) of I.P.C., the case of the prosecution been clearly proved through witnesses that this appellant caused the death of Rajiv and Megan and also caused injury to P.W.1 and P.W.3. Therefore, there is no ground to interfere the well considered judgment of the trial Court. 10. Heard the Learned Counsel for the appellant and the Learned Government Advocate (Crl.Side) for the respondent. Records perused. 11. The evidence placed before the Court as spoken by P.W1 Saravanan and P.W.3 Ayyasamy proves that, on 05.11.2010, at about 4.30 p.m., this appellant and his son-in-law had picked quarrel with Rajiv, Megan and Ayyasamy (P.W.3) and Saravanan (P.W.1) at the grocery store. While returning home after purchasing groceries from provision store, Rajiv was walking ahead. He was retrained by the appellant and his son-in-law. Anumanthan (A2) has caught Rajiv and Opputtu @ Chinnavan, the appellant herein had stabbed him on the chest, causing instant death. The Post-Mortem report of Rajiv is marked as Ex.P.8. The cause of the death as per the Doctor opinion is haemorrhage shock due to ventricular rupture. He was retrained by the appellant and his son-in-law. Anumanthan (A2) has caught Rajiv and Opputtu @ Chinnavan, the appellant herein had stabbed him on the chest, causing instant death. The Post-Mortem report of Rajiv is marked as Ex.P.8. The cause of the death as per the Doctor opinion is haemorrhage shock due to ventricular rupture. One of the external injury observed in the Post Mortem report is penetrating wound with lacerated edges present over the left side of the chest of size 7 c.m x 3 c.m x bony depth. This injury has been witnessed by P.W.1 and P.W.3 and spoken to corroborate the evidence of the Post Mortem Doctor P.W.7 and the Post-Mortem Certificate of P.W.8. 12. Similarly, the case of the prosecution as spoken by P.W.1 and P.W.3 is that after causing the fatal injury to Rajiv, the appellant has stabbed Megan on this left Chest and neck who came to rescue Rajiv. The Post Mortem Report of Megan is marked as Ex.P.10 which indicates that, he died due to haemorrhage shock. The following external injuries were notice. (i). Penetrating wound with lacerated edges present in left side of neck of size 3 c.m x 2 c.m x lung depth. (ii). Penetrating wound with lacerated edges present in the left side of Chest of size 7 c.m x 4 c.m x bony depth. (iii). Abrasion present over Right big toe of size 4 c.m x 2 c.m. (iv). Abrasion present over right foot of size 6 c.m x 0.5 c.m (v). Abrasion present over left big toe of size 4 c.m x 1.5 c.m. The injuries 1 & 2 were caused on the vital organ causing the death of Megan. 13. Therefore, the prosecution has clearly proved that the accused has caused the death of Rajiv and Megan by stabbing them in the vital part, which is sufficient to cause death. In the same transaction, the Appellant has caused injury to P.W.1 and P.W.3. The wound certificate of Saravanan is marked as Ex.P.6. As per this document, a 2 x 1 c.m x 0.5 c.m lacerated wound seen over left forearm near wrist joint caused by this appellant as spoken by the injured and proved by the prosecution. He is the 4th person to sustain injury at the hands of the appellant out of the four two died and another sustained grievous injuries. As per this document, a 2 x 1 c.m x 0.5 c.m lacerated wound seen over left forearm near wrist joint caused by this appellant as spoken by the injured and proved by the prosecution. He is the 4th person to sustain injury at the hands of the appellant out of the four two died and another sustained grievous injuries. P.W.3 sustained injury when he tried to stop the quarrel between the appellants and others. The wound certificate for the injury sustained by P.W.3 is marked as Ex.P.15 and injuries 1 & 2 on the vital part namely chest and infor memory region 8 c.m x 2 c.m size. They are grievous in nature as opined by the Doctor. The opinion of Vinayaka Mission Hopsital, Salem, Radiology & Imaging Science Department, indicates that left side lung collapsed and surgery has been conducted. 14. On the cumulative assessment of these evidences, this Court finds that the testimony of the injured witness clearly proves the fact that the appellant herein has indulged in spear of brutal attack causing death of two persons and grievous hurt to P.W.3 and simple hurt to P.W.1 using deadly weapon. His intention through the act clearly reveals that the appellant had adequate intention and knowledge that the injury he caused likely to cause death. However, the trial Court has taken note of the fact that both the accused and the deceased were in drunken mood. Therefore, charges was altered from Section 302 I.P.C to Section 304(1) of I.P.C. Since the evidence by the prosecution clearly proves the fact that the death of Rajiv and Megan was due to the injury caused by this appellant and the injury caused to P.W.1 and P.W.3 were caused by the appellant only with intention to cause death. The conviction for offences under Section 304(1) of I.P.C and 307 of I.P.C is based on evidence, proved beyond doubt. 15. Therefore, This Court finds no error in the finding of the Court below. There is no reason to interfere the well considered judgment of the Trial Court. Hence, this Criminal Appeal is dismissed. The conviction and sentence passed by the Additional District and Sessions Judge, Dharmapuri, is confirmed. Bail Bond stands cancelled. The accused shall be secured and committed to prison to undergo the remaining period of sentence. The period of imprisonment already undergo shall be set off under Section 428 of Cr.P.C.